There will be a question and answer session at the end of the Minister's presentation.
Council Framework Decision on Sentences: Motion.
I thank the committee for the opportunity to discuss the adoption of a Council framework decision on the recognition and supervision of suspended sentences, alternative sanctions and conditional sanctions by legislative means. The proposal must come before the Houses of the Oireachtas under the Constitution, according to the advice of the Office of the Attorney General.
This measure arises from a proposal for a Council framework decision on the recognition and supervision of suspended sentences, alternative sanctions and conditional sanctions. It was presented by the Commission in February 2007. The initiators of the framework decision, Germany and France, were of the view that rehabilitation of offenders can be better achieved in their country of origin due to the removal of language and social custom barriers and the availability of friends and relatives to offer support.
It is the intention of this framework decision to provide a more effective instrument for use by all member states because it is based on the principle of mutual recognition. This is a measure that both provides for implementation of sanctions imposed and delivery of valuable and necessary interventions with the offender in the community. The aim of the framework decision is based on the principle of mutual recognition of judicial decisions in criminal matters by member states where non-custodial sentences or alternative sanctions have been imposed. The measures contained in the framework decision are intended to make it easier to impose and enforce such sanctions on non-residents by introducing an obligation on each member state to recognise and supervise convictions imposed in another member state.
Although from the outset this proposal had the support of all the member states and Ireland took a positive approach, negotiations involved much compromise to arrive at a final agreement. One of the primary Irish objectives in the negotiations was to protect the principle of double criminality. Ireland will still maintain the condition that a judgment given by a foreign court and all that flows from it are based on acts that would also constitute an offence under Irish law. It was also our objective to ensure that the types of measures imposed were compatible with Ireland's current judicial system and that it is practically possible to implement them here.
The European Parliament delivered its opinion on the instrument in October 2007 and in December a final comprehensive package was agreed at the Justice and Home Affairs Council meeting. Member states were then requested to attend to the domestic arrangements needed to allow political agreement to take place. Ireland now wishes to remove its parliamentary scrutiny reservation and proceed to formally adopt the instrument.
I will now turn to the detail of the instrument. Article 1 outlines the objectives and scope of the instrument which is, inter alia, to facilitate the social re-integration of sentenced persons who are the subject of probation measures or alternative sanctions and who do not live in the state of conviction. The framework decision does not apply to the execution of custodial sentences unless a conditional release has been granted or financial penalties and confiscation orders apply.
Article 2 sets out a list of definitions, Article 3 provides for the designation by member states of a competent authority to implement the measures and Article 4 contains the types of probation measures and alternative sanctions which may be imposed. All of the probation measures and alternative sanctions listed are covered under existing Irish legislation.
Articles 5 and 6 specify the procedures to be applied for forwarding and receipt of judgments and other related papers. This involves the forwarding of a judgment and/or probation decision to the competent authority of the member state in which the sentenced person is ordinarily and lawfully residing. This can be done where the sentenced person has already returned home or requests to return home. Article 5 also provides that a sentenced person may request that the judgment be forwarded to a member state other than the state in which he or she is ordinarily residing. However, in this case the latter competent authority of that member state must consent to this. The applicable timeframes are specified in Article 12. The executing state must decide as soon as possible but within 60 days of receipt of the judgment whether to recognise the judgment.
Article 6 provides the procedures applied for forwarding and receipt of judgments and applicable probation measures. The certificate must involve a written record which allows the executing state to establish its authenticity. A detailed certificate, signed and verified as containing accurate information by the competent authority of the issuing state shall accompany each judgment or probation decision.
Article 7 provides for the transfer of competence with regard to the supervision of the probation measures or alternative sanctions from the issuing state to the executing state once the forwarded judgment has been recognised by the latter. Such transfer of competency includes all decisions provided for under Article 14. Article 7 further specifies where the said competency shall revert to the issuing state. This is in circumstances outlined in Articles 9, 14 and 20.
Article 8 provides for the expedient delivery of supervision of the probation measures or appropriate sanctions, save where a ground for refusal of supervision has been established under Article 11. Such a decision on the recognition of the judgment and or decision may also be postponed where the certificate is incomplete or where there is a discrepancy between the certificate and the judgment.
Article 9 addresses the adaptation of the probation measures or alternative sanctions. Where the measure or sanction differs in nature or duration from that which would ordinarily be imposed in the executing state, it may be adapted accordingly by the executing state whilst endeavouring to correspond as far as possible to that of the issuing state. Where the measure or sanction requires adaptation, because it is in excess of the maximum prescribed penalty in the executing state, the measure or sanction shall be replaced by the maximum available penalty for the said offence in the executing state and cannot be lesser than this maximum. The adapted measure or sanction may not exceed that which was originally imposed, in length or severity. The issuing state may withdraw the certificate in specified circumstances provided that supervision has not yet commenced. In such circumstances the decision must be made and communicated as expeditiously as possible and within ten days of the receipt of the specified information.
Article 10 enumerates the offences in respect of which the principle of double criminality need not be verified. However, Article 10(3) and Article 10(4) provide that the executing state may apply the principle of dual criminality. The list can be expanded or amended by the Council.
Article 11 provides that an executing state may refuse to recognise a judgment and supervision under particular specified circumstances, including where a judgment was rendered in absentia. The wording of this particular provision in Article 11(1)(h) could be replaced following adoption of a draft Council framework decision on the enforcement of decisions rendered in absentia which provides for a consistent approach to non-recognition of judgments in absentia across a number of framework decisions which it proposes to modify. The change would be technical in nature and would not change the substance of the provision.
Article 11(4) provides that an executing state may accept the supervisory role while stipulating that the decision making role remains vested in the issuing state with regard to the modification of instructions contained in a probation measure or the duration of a probation period, revocation of suspended judgments or conditional release and the imposition of custodial sentences or measures involving the deprivation of liberty in case of alternative sanctions or custodial sentences.
Article 12 specifies the applicable time limits for the decision regarding recognition of judgment and the communication of same. Article 13 provides that the law governing the supervision of the probation measures and alternative sanctions will be that of the executing state.
Article 14 confers the competency to take all subsequent decisions following a return home relating to a suspended sentence, conditional release, conditional sentence or alternative sanction to the executing state, particularly in cases of non-compliance or where a new offence is committed by the sentenced person. Such decisions would include the modification of probation measures and alternative sanctions; revocation of decisions pertaining to suspension of execution of judgments or decisions pertaining to conditional release and imposition of custodial sentences or measures involving deprivation of liberty in cases of alternative sanctions or conditional sentences.
In all such actions, the law of the executing state shall apply. On adopting the framework decision, or at a later date, the State may refuse, in certain circumstances, to assume part of this responsibility provided in the case of revocation of the decision on conditional release or regarding the imposition of a custodial sentence or a measure amounting to deprivation of liberty in cases of alternative sanctions or conditional sentences.
Article 15 concerns the communication and consultation between competent authorities with a view to facilitating the smooth and efficient application of the framework decision. Article 16 governs the obligations of the authorities involved where the executing state has jurisdiction for subsequent decisions.
Article 17 provides for the obligations on authorities where the issuing state retains jurisdiction for some further decisions. Where, under the national law of the issuing state, the sentenced person must be given a judicial hearing before a decision is made on imposition of a sentence, provision should be made for the facilitation of same through instruments of European Union law providing for the possibility of video conferencing.
Article 18 provides for the transfer of information, which leaves a written record, from the executing state to the issuing state in all cases. Article 19 provides that amnesties or pardons may be granted by the issuing state or the executing state. With regard to review of the judgment which forms the basis of the probation measures or alternative sanctions, the issuing state alone has jurisdiction to decide.
Article 20 stipulates that the jurisdiction of the executing state terminates when the sentenced person no longer has a lawful residence within the state. Transfer of jurisdiction in respect of decision making in the supervision of probation measures or alternative sanctions may also be effected where the issuing state requests same due to the commencement of new criminal proceedings against the sentenced person.
In the context of the implementation of the framework decision new legislation will be needed to provide for the enforcement here of a foreign court's decision. I thank the members of the committee for the time allowed for consideration of the matter.
This is a complex issue. The Minister stated it will require domestic legislation and we should probably leave the debate until then. I have a number of preliminary queries to address to the Minister. I welcome the initiative. It is important in the context of consistency and the harmonising of penalties and sanctions throughout the EU. Will this remedy be automatic as a right or will it be on the basis of an application in each case?
If a court in France hands down to an Irish citizen who lives and works in Ireland a community service order arising out of criminal activity while on holiday and the person wishes the sanction to be imposed in Ireland, I take it this is done on application and a reason must be given for serving the alternative sentence to custody in Ireland. Obviously, it would not be possible for the person to apply to have the duration of the sentence played out in the Czech Republic, Sweden or other countries to which the person does not have particular ties. I take it that each case will be dealt with by individual application.
I wonder about our database procedure. If each sentence is to be recorded in the home state or state of residency of the offending party it raises the question of databases. I know we have difficulties at present. EU-wide criminal databases are not up to standard or in existence to the best of my knowledge and it is important that they would be. With regard to registration of judgments here, how prepared are we for this type of regime? A move towards having a complete EU-wide register to facilitate information and the application envisaged under this decision will place a considerable burden on our system. Is our central agency fully equipped to deal with these matters?
An initial application will be made to have the alternative sentence dealt with in this jurisdiction. There will have to be a corresponding notification to the decision-making state that the order has been complied with and that the case can be closed. This will require considerable data and databasing. I gave the example of the Irish person serving a community service order in Ireland for a crime committed in France and by a decision of a French court. If during the course of that community service that person applies for and succeeds in obtaining a job in Germany, presumably before that job is taken up or before that residency is acquired the details of the community service order or the suspended sentence would have to be recorded in the German jurisdiction. I wonder about the cumbersome nature of the procedural and bureaucratic process, given that all orders are, by and large, quite minor.
I wonder about current procedures surrounding the transfer of sentenced persons where people are serving custodial prison sentences in another jurisdiction and wish to have that sentence served in the Irish jurisdiction. While the procedure is there and while the right or entitlement is there under certain provisions, nevertheless the procedure is extremely cumbersome and it can take a lot of time. It can dissuade the person from even applying for it.
I note in Article 9 certain flexibilities that are welcome. However, if a person is in the course of serving the community service order here — for ease of reference I refer to an Irish person who commits a crime in France and returns home to Ireland — and becomes ill and is unable to complete the order and produces a medical certificate from an Irish general practitioner, the executing state, which in my example is Ireland, may have no difficulty accepting this but where lies the original decision-making state, France, and the acceptance or otherwise of a medical report that says this person is unable to complete his six months community service? How will this work out?
If there are consequent convictions in the executing jurisdiction, I assume the evidence of the previous conviction committed in another jurisdiction will be given to the court and would be taken into account. This would be something new to Irish law, where evidence of criminal activity in a foreign state would be tendered and could be taken into consideration by a judge prior to a conviction for a new or consequent crime. I wonder also about the time lag between the order of the court being made in another jurisdiction and the endorsing of that order in the central database here. What is the time lag or what are the time targets? How soon is this undertaken? I have in mind the incident involving the citizen from the midlands who was working for the HSE and who had the misfortune of engaging in criminal activity abroad. The matter was dealt with in a foreign jurisdiction but there did not seem to be any record of it in Ireland. If that non-custodial sanction handed out by a court in another jurisdiction has to be endorsed and recorded here in Ireland this would require significant investment in data to ensure our agency was competent to deal with it.
I ask the Minister to state how soon he thinks the legislation will be published. Perhaps many of the issues I have raised are more appropriate to such legislation. All this is very welcome but it is quite cumbersome and complex. I wish the Minister well with it.
We believe it will be necessary to make amendments to the Probation of Offenders Act 1907 and we have a number of years in which to pass legislation to do so. The framework decision proposes a central authority to be designated — more than likely in the Department of Justice, Equality and Law Reform — to take on the job of consenting or otherwise to requests for these non-custodial sentences to be implemented. Article 12 provides for a time limit. The competent authority of the executing state shall as soon as possible and within 60 days of receipt of the judgment make a decision. It shall immediately inform the competent authority of the issuing state by any means which leaves a written record of its decision.
I accept the Deputy's point about the sentenced prisoners with custodial sentences. These regulations can be cumbersome but they relate in the main to very serious offences. There is a question as to whether there is custodial space for them and the views of the two states involved must be considered. In some cases I have had to ascertain the views of victims with regard to the transfer of a convicted person back from whence they came or to this jurisdiction. It is understood the time span should be as short as possible as these are not particularly serious offences in this instance.
With regard to the person who might fall ill in the middle of serving their probation here, this would be dealt with in a similar fashion as if the offence was committed here and had nothing to do with any other country. It would be a matter for the court to decide on the basis of medical evidence.
Is this a matter for which the Irish court would have full jurisdiction without any reference to the deciding state?
That is my understanding of this framework, unless that issuing state had retained competence and this was specified in the agreement to transfer.
With regard to transferring of information and issues to do with Europol, as the European Union becomes more cohesive in this regard it is easier to share information about people committing cross-border crime. This and the previous Council decision set out to address this issue without taking away national competencies. The intention is to share information and deal with matters on a cross-border basis, which I think we would all welcome.
I note that the framework decision was initiated by Germany and France, which share a border. Did they go down this road for particular reasons?
In regard to a citizen of one state who commits a crime, such as football hooliganism, in a different jurisdiction and is convicted and sentenced in absentia, is a mechanism available which would make the citizen’s country of origin aware of the sentence? What are the mechanisms for communication? As Deputy Flanagan noted, the process appears cumbersome. How often do situations involving non-custodial sentences arise? If somebody leaves a country subsequent to committing a crime, how is the decision to impose a sentence in absentia communicated to the authorities in the person’s country of origin?
Convictions of a person in absentia subsequent to his or her moving home are catered for under the decision and, ultimately, the legislation that puts it in place. Consent would be implied regarding the jurisdiction of the requesting state to implement the non-custodial sentence. Football hooliganism is a good example because it will probably be one of the most frequent reasons for making use of these provisions. Based on the experience of other countries, we expect that the use of this facility for Irish people who are temporarily abroad could arise from a handful of cases in 2011 to a couple of hundred by 2013 or 2014. This would be fewer than 5% of the current intake of new referrals each year to the probation and welfare service. We anticipate that it would not involve a significant burden on the service’s existing resources.
Ultimately, this directive attempts to facilitate the rehabilitation of people who have the possibility of returning home. It is more than likely that the sentences with which we are concerned will not be imposed in respect of serious offences. Rather than force people to commit further crimes because their sentences were so onerous that they are prevented from coming home, it is better to deal with them when they are closer to their families and homes.
There appears to be no particular reason Germany and France are the instigators of this directive, other than because they are large member states with significant issues in this respect. I understand that discussions on the need to introduce these measures have been ongoing for many years but it is only in the past several years that other member states have agreed to them. As I noted earlier, although preliminary agreement had been reached on how the measures were to be implemented, a number of significant issues arose during the nitty gritty of the negotiations and this directive is ultimately a compromise. Several countries wished to ensure this was taken into account by the framework decision. We were supportive because, in general, judgments in Irish courts are not made in absentia.
Take, for example, the vandalism that English fans inflicted on Lansdowne Road in 1995. How could this directive be used by the Irish authorities to put people on the boat while still making sure they answer for what they have done?
I would have thought they would be charged, convicted and incarcerated here. A request could then be made to allow them to go home. The decision in this regard would be subject to discussions between the competent designated authorities. We would consent to their return to the UK provided that the appropriate conditions were met. The framework decision facilitates such a transfer rather than requiring them to be dealt with solely in Ireland. It would also make space in our prisons for longer-term prisoners.
We have now completed our consideration of the motions. I thank the Minister and the committee members for their co-operation in dealing with these motions.