Seanad Éireann debate -
Wednesday, 31 Mar 2004

Vol. 176 No. 1

Transfer of Execution of Sentences Bill 2003: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Health and Children (Mr. Callely)

I am pleased to present to the House the Transfer of Execution of Sentences Bill 2003. The central purpose of the Bill is to deal with the transfer of the execution of sentences where the sentenced person has fled from the sentencing state to his or her state of nationality. In this regard, the Bill gives effect to provisions in Article 2 of the Additional Protocol to the Council of Europe's Convention on the Transfer of Sentenced Persons as well as Articles 67 to 69 of the Schengen convention. Articles 67 to 69 of the Schengen convention correspond to those in Article 2 of the additional protocol. Enactment of this Bill will enable Ireland to ratify the additional protocol and to operate the relevant Schengen provisions.

The additional protocol and the Schengen provisions supplement the 1983 Council of Europe Convention on the Transfer of Sentenced Persons. The 1983 convention has been given effect in Irish law by the 1995 Act of the same name. Under that Act a national of one state party detained in another state party can apply for transfer to his or her country of nationality to serve out his or her sentence there. One essential feature of the existing system is that it is the prisoner who initiates the process by requesting the transfer.

The circumstances arising under this Bill are materially different from those covered by the 1983 convention. In cases arising under the 1983 convention, the person is in custody in the sentencing state and consents to return to the state of nationality. However, in the circumstances covered by this Bill, the person has already fled from the sentencing state before serving the sentence and is now in his or her state of nationality. The issue that therefore arises is to ensure that the person serves or completes the sentence that was lawfully imposed in the sentencing state.

The consent of the prisoner under the 1983 convention relates not to whether a sentenced person should serve the sentence but to the state in which it is to be served. In circumstances where a person has deliberately fled from the sentencing state and returned to his or her state of nationality, the person has in effect exercised his or her consent in relation to his or her return to the state of nationality. It is then a matter of ensuring that the person serves a sentence that was lawfully imposed in the sentencing state.

Before turning to the detailed provisions in the Bill, I will set out the circumstances in which it will apply. The Bill will apply in two categories of cases. First, it can apply in the case of a person sentenced by an Irish court who has fled from this State to his or her state of nationality without either commencing or completing the sentence. In that case, the Minister for Justice, Equality and Law Reform may request the authorities in the other state to enforce the Irish sentence. In the second situation, a sentencing state may make a similar request to this State in the case of Irish nationals who have fled back to this State prior to the commencement or completion of a sentence. Under this Bill a request from the sentencing state must receive the consent of the Minister for Justice, Equality and Law Reform before an application can be made to the High Court for a warrant for the person's arrest. The Minister has to be satisfied as to certain matters before an application is made to the High Court. In any event, the Minister may, having regard to all the circumstances, decide not to make an application. Following arrest, the High Court may make orders for the carrying out of the foreign sentence in Ireland.

The Bill has 13 sections. Section 1 provides for the definition of certain terms used in the Bill. Section 2 provides that the new provisions will apply in relation to sentences imposed either before or after the entry into force of the Act. This reflects Article 7 of the additional protocol and Article 21 of the main convention.

Section 3 provides a definition for correspondence of offences and is related to the dual criminality requirement. Offences will be considered to correspond where the acts or omissions constituting the offence would, if committed in one state, constitute an offence under the law of the other state.

Section 4 is an important section in the overall scheme being introduced by this Bill. It provides that the Minister for Foreign Affairs may by order designate countries that have accepted the relevant additional protocol or Schengen provisions. The order will identify the states with which Ireland will operate these arrangements. In other words being a party to the additional protocol or the Schengen convention will not, of itself, be sufficient. Ireland must also be satisfied about the systems operated by the other state before it agrees to operate these arrangements with it. Ireland will not be operating these arrangements where it is not so satisfied.

Section 5 provides that the Minister for Justice, Equality and Law Reform may request a country that has been designated under section 4 to take over the enforcement of the sentence in circumstances where the sentenced person has fled from Ireland to the other country. The Minister may make a request if he or she is satisfied that the person concerned is regarded as a national of that country; the order under which the sentence concerned was imposed is final; and at the time of issuing the request the sentenced person must, generally, have at least six months of the sentence concerned to serve.

Section 6 provides that the Minister may consent to a request from a country designated under section 4 for the execution in this State of a sentence imposed in the sentencing country on a person who has now fled to Ireland. Thus the Minister may consent to the execution in this State of a sentence imposed in the sentencing country on an Irish national who has now fled to the State.

Before giving consent the Minister must be satisfied that certain requirements have been fulfilled; that the person concerned is regarded as an Irish citizen; the sentence concerned is final; that the sentenced person has at least six months of the sentence left to serve; that dual criminality applies, meaning the offence concerned would constitute a criminal offence if committed in the State; and that, having regard to all the circumstances, it would be in order for the Minister to give his or her consent. A certificate is prepared and presented to the High Court under section 7 where the Minister consents to the request.

The nationality issue was addressed by Ireland when it ratified the 1983 Council of Europe Convention in 1995. It made a declaration of our understanding of the term "national" for the purpose of the convention which states: "For the purposes of this convention, the term "national" means, in relation to Ireland, an Irish citizen or any person whose transfer to Ireland is considered appropriate having regard to any close ties which the person has with Ireland." As a result, the term "national" as used by Ireland means an Irish citizen or any person who has close ties with Ireland. This approach is in line with the general position adopted by EU member states in 1987.

Returning to the provisions of the Bill, section 7 sets out the procedure by which a sentence imposed in another state may be executed in this State. It provides, as indicated earlier, for a certificate by or on behalf of the Minister to the effect that he or she consents to taking over the enforcement of the sentence, and provides for an application to be made to the High Court for the issue of a warrant authorising the arrest of the person concerned. The High Court, on production of the certificate, issues a warrant for the arrest of the person if satisfied there has been compliance with section 6(2). The ministerial certificate must contain certain information, for example, the name and address, where known, of the sentenced person and the sentence imposed on him or her. Under this section or section 8, a warrant may be executed by any member of the Garda Síochána in any part of the State even if it is not in the possession of the member at the time. However, the warrant must be shown and a copy given to the person arrested at the time of arrest or within 24 hours thereafter. A person arrested under a warrant must be brought before the High Court as soon as possible.

Section 8 sets out the procedures relating to the issue by the High Court of a provisional arrest warrant. This section gives effect to Article 68(2) of the Schengen convention and Article 2(2) of the additional protocol. Those articles provide that a sentencing state may request the administering state, prior to the arrival of documents supporting the request and prior to the decision on the request, to take the sentenced person into police custody or to take other equivalent measures. A warrant for provisional arrest may be issued by the High Court on an application by a member of the Garda Síochána, not below the rank of inspector, given with the consent of the Minister, that a request for the person's provisional arrest has been made by a sentencing country.

The Bill sets out the details that are to be included in the request for the warrant. A person arrested under a provisional arrest warrant must be brought before the High Court as soon as possible and the High Court must remand the person in custody pending the production of a ministerial certificate referred to earlier under section 7. That certificate will indicate that the Minister has received and is consenting to the request from the sentencing state. If a certificate is not produced within 18 days of the person's arrest the person will be released. The release of any person will not prejudice his or her re-arrest if a request for the enforcement of the penalty or detention order is made afterwards.

Section 9 provides that the High Court may make an order committing the person to a prison or Saint Patrick's Institution for the purposes of serving the sentence or remainder thereof. Before making the order, the High Court must be satisfied that the Minister has given his consent, the person is an Irish citizen, or has close ties with Ireland; the order imposing the sentence in the sentencing state is final; dual criminality applies, and so on.

The effect of an order is to authorise the continued enforcement by the State of the sentence imposed by the sentencing state and means, in practice, that the whole or the balance of the sentence will have to be served in Ireland. In other words, it will have the same effect as if it were a sentence imposed here. It will not be subject to appeal in this jurisdiction as that remains the prerogative of the sentencing state that imposed the sentence and since the Minister and High Court are satisfied that the sentence to be served here is final under the law of the sentencing state. In all other respects the sentence will be served the same way as a sentence imposed here and will be subject to the same rules, including remission and temporary release.

Section 9(3) provides that the Minister may apply to the court to adapt the duration of the sentence to conform with our law if the sentence imposed by the sentencing state is greater than the maximum term to which the person would be liable if he or she had committed the offence in the State. Subsection (4) provides that any element of a sentence, excluding duration, imposed by the sentencing state which renders the sentence less favourable than the penalty to which the person would be liable had he or she been convicted in the State for a similar offence will not apply if the High Court so directs. For example, Ireland will not impose penal servitude even if the original sentence provided for this.

Enforcement of the sentence ceases where the State is notified by the sentencing country that the person would be entitled to be released under its law. The person will be released unless his or her continued detention in Ireland is required as a result of a sentence imposed here or the person has been remanded in custody in respect of an offence committed in Ireland.

Section 10 provides that the Criminal Procedure Act 1993 shall not apply to a person detained under this Act. The 1993 Act provides for judicial review of certain convictions and sentences, for presentation of petitions for the grant of pardon on the grounds of miscarriage of justice and for payment of compensation by the State. Such proceedings would not be appropriate in the circumstances covered by this Act, since the events, witnesses, evidence etc. are outside the jurisdiction and are not amenable to the Irish courts. However, the Act does not prevent the person pursuing such an action under the law of the sentencing state.

Section 11 provides that no proceedings under section 3 of the Criminal Law (Jurisdiction) Act 1976 will be taken against a person who is imprisoned here under this Bill. Otherwise the person could be liable not only to serve a sentence imposed in Northern Ireland but, in addition, could be proceeded against under section 3 of the 1976 Act. Section 3 of the 1976 Act provides that a person who escapes from any lawful custody in which he or she is held in Northern Ireland shall be guilty of an offence.

Section 12 is a standard provision concerning expenses and section 13 provides for the Short Title and commencement of the Act.

The Bill will ensure fugitives serve their sentences. It will also reduce the risk of Ireland being seen as a safe haven for fugitives. The provisions also have advantages for the prisoner in that they offer an alternative to extradition that may be more favourable to the sentenced person and they also facilitate the family and relatives of the sentenced person by easing visiting arrangements and other contacts.

The Bill contains effective safeguards. The consent of the Minister is required before a request can be processed and the Minister will have discretion to decline requests where he or she is not satisfied with or has concerns about the arrangements being proposed in any particular case. Ireland will operate these arrangements only with states in whose systems we have confidence. A person may be arrested and imprisoned here only with the consent of the High Court. In addition, a person can be imprisoned only if convicted of an offence that corresponds to an offence under Irish law. I commend the Bill to the House.

Mr. Bradford

I apologise for my party colleague and spokesperson on justice, Senator Terry, who cannot be here this afternoon. She has asked me to put on the record her support for this proposal. The Fine Gael Party believes we must all work together in the fight against crime, whether at home or abroad. This Bill is a step in the right direction. The dramatic title of the Bill and the fact the Minister of State spoke with gusto about fugitives being brought home to serve their sentences or serving their sentences abroad leads one to believe that he would make a fearsome Minister for Justice, Equality and Law Reform when he moves up the ladder from Minister of State.

Mr. Callely

The Senator might put in a good word for me.

Mr. Bradford

It was stated that the effect of the legislation is likely to be a small increase in the number of prisoners in Irish jails. I am not sure if that is right or wrong. Perhaps the Minister could tell us how many persons will be returned home to serve sentences in Irish jails. That would create difficulties as there is an accommodation problem in our prison system, which has been debated on many occasions. If the Minister is not talking about closing prisons and prison spaces, he is usually in the middle of a row with prison officers. That issue must be resolved. There is little point in the Minister trying to pass such legislation to allow people to serve sentences here unless prison spaces are available. That issue is central to the legislation. Perhaps the Minister of State might outline the current position, although I appreciate he may not have the relevant figures with him this afternoon. Prison accommodation is an important political issue. We have had more questions than answers on this subject.

The Bill may have few sections and pages, but it is important and it is part of the increasing domestic and international fight against crime. Some of the crimes covered under this legislation may be minor, while others may be major and involve major criminals. We must take that seriously. It shows our maturity as a State and Parliament that we can have such a debate without being as emotional as we may have been five, ten or 15 years ago. The Minister of State will recall that when we tried to make legislative progress on extradition in the 1980s, it was a bridge too far for many people. It was almost a no-go area for different political reasons. Yet it had to be tackled and that was done successfully.

This legislation is similar in that we are talking about Irish people serving sentences outside the country or foreign nationals serving sentences here. It requires co-operation between the various member states and it is good we have that in the fight against crime, whether at home or abroad. We must work together because a crime committed in Ireland, Britain or France is a crime against the citizens of the European Union and against humanity. The fight must be fought with vigour in all the countries which sign up to this agreement. We must fully support this legislation.

Europe is influencing what we are doing this afternoon and it has influenced most of the legislation from the Department of Justice, Equality and Law Reform over the past decade. Such European and international influence will continue and increase as a result of the 11 September atrocities. It was good that last week the European Union countries, led by the Taoiseach, came together in a strong show of support for the battle against crime, criminals and terrorism. We did not think that was necessary in the past. However, it is important that we all work together.

For this legislation to be a success, we must ensure the issue of prison accommodation is resolved and that the maximum number of countries sign up to it. While we can call on our colleagues across Europe and elsewhere to put this in place, we are probably not the best people to preach in that regard because there have been too many delays in signing up to some international agreements to which we have been committed. The Criminal Justice (Terrorist Offences) Bill 2002, for example, has not yet been enacted. I had hoped the Minister would be here to comment on that, but perhaps the Minister of State might indicate why there has been a delay in enacting that legislation and when it will be enacted. I have been told that it was due to implement six or seven conventions, some of which date back to the 1970s. It is important that such a Bill is enacted at the earliest possible date.

It is not good that conventions which date back almost 30 years are not implemented. We should try to progress that. We must ensure that when we call on other Parliaments and Governments to put this legislation in place that we are willing to implement international conventions. I have also been advised that some aspects of this Bill relate to agreements made in 1985 and 1990. While it may be slightly acceptable that we did not deal with agreements made in 1990, it is not right that we are trying to put in place something which dates back to 1985. That shows we have not always had our eye firmly on the ball and we must improve in that regard.

I referred to the prison system. I have one or two queries about the Minister of State's speech and the Bill. As regards a person sentenced by an Irish court who has fled from the State back to his or her state of nationality, we may request the authorities in that state to enforce the Irish sentence. What are our options in that regard when a person flees to a state which is not his or her state of nationality, but which has signed up to the convention? Is it to seek extradition? With regard to all the countries that have signed up to this agreement, is it only when a person returns to their native state that we can call on that state to enforce the sentence? What if the person flees to a third state which is not the person's native state but which has signed up to the agreement? Perhaps the Minister will advise on what can be done in such cases.

Mr. Callely

I will respond to that.

Mr. Bradford

I also have a question about Irish nationals having returned to the State and being required to serve a sentence here for crimes committed in one of the states with which we have an agreement. There is a discretionary provision whereby the Minister, after checking the circumstances in full, can decide not to proceed with an application to the High Court. We have been given an indication of what those circumstances might be but I trust it is the Minister's expectation that the Minister would, in the vast majority of cases brought to his or her attention, decide to let the execution of a sentence proceed. I hope there would only be a small number of cases in which the Minister would not give consent. It is important that this legislation is seen to work and that the Minister's discretion will only be used where it is considered absolutely necessary.

Section 10 provides that the Criminal Procedure Act 1993 is disapplied and the Minister puts forward constructive reasons for that. However, as a result of this section, it is possible prisoners will serve similar sentences for the same type of crime but in a sense they will be serving them under different conditions. The vast majority of them will be imprisoned under the normal arrangements while a tiny minority will be imprisoned under this legislation and section 10 provides that the Criminal Procedure Act 1993 will not apply to them. Presumably this will not have a substantial effect but perhaps the Minister would explain why the Criminal Procedure Act is not applied.

My party supports the legislation. I look forward to hearing the Minister's response to my queries, particularly with regard to prison accommodation. An item which my colleague had hoped to highlight is one which is not covered by the Bill but which must be kept to the fore in our policy for dealing with crime. It is the issue of known drugs criminals who have relocated outside the State and who continue to flood the country with drugs from their new bases in Spain, Holland and other countries. These people are seen as virtually untouchable; they certainly act as if they are. We do not appear to have put in place the legislation to tackle these people and, as a result of their behaviour, thousands of our citizens are suffering. A message must go to these untouchables that this House intends to chase them and inflict the rigours of the law on them. Perhaps the Minister will confirm the Government's intentions in that regard.

This Bill has been long delayed. We should make it our policy to respond in a more hurried fashion in future to international conventions and agreements by putting in place the appropriate legislative foundations for their implementation. I welcome the Bill and wish it a speedy passage through the House.

Ms Feeney

I wish to share time with Senator Kett. I welcome the Bill. The title is a mouthful — I listened to the Minister trying to get his mouth around words such as "execution", "sentencing states" and so forth so I will simply refer to "the Bill". I was researching the Bill this morning and reading about the Schengen agreement and other conventions. The mind boggles at the depth of the issues they cover. However, one can see how effective they are when one sees a Bill which gives effect to provisions in the Schengen agreement.

The Bill permits the transfer of the execution of a sentence when somebody has fled a country. The person can be brought back or made to serve his or her sentence in the state to which he or she fled. It is a short Bill. It will not apply to a sentence of less than six months or to the retention of a prisoner who has only six months of the sentence left to serve. It is not used to deal with petty crime, which is welcome. In many cases where Irish persons are found guilty by a foreign court, it is for drunken behaviour or some kind of football madness. It is generally a respectable individual who is well behaved in his own country but who goes abroad and, for whatever reason, gets caught up in something that lands him in trouble. I am glad the Bill does not cover such instances but applies to more serious crimes.

This is important legislation and I am glad it is before the House today. It permits the transfer of prisoners between states. The prisoner will have to initiate that process. If a young Irish male is serving a prison sentence in Spain, it is not only a sentence for that individual but also for his family. Everybody is aware of the cost of travel and if he has young children, it will be an added burden on the family not to have much access to their loved one.

Under the Bill, "national" means not only an Irish citizen but also a person who has close ties with Ireland. That could be the spouse or partner of an Irish national who is serving a sentence in another country. Again, the Irish person is also a victim because the sentence is served in a foreign state. With this Bill, the woman can have her husband returned to Ireland if that is what he wishes. This will cut down on costs for the couple.

It is important to note that we are not seeking leniency in the sentence. The person will serve the sentence in full in an Irish prison. The safeguards in the Bill are important and commendable.

There is no appeal system. The sentence will only apply when it is final. There will be no need for an appeal to be heard and Ireland will not interfere. All the final stages of the conviction will have been gone through before a sentence is reached. The sentence to be served in Ireland must not be less favourable than its legal nature handed out in this State for that type of offence. Again, that is good. In addition, all the entitlements in regard to remission will be taken into account. If a prisoner has served half his or her sentence in another state and where good behaviour can be taken into account, that can be transferred with the prisoner and sentence to this State.

The new arrangements are beneficial for a prisoner as they will be an alternative to extradition. I do not know about other Senators, but I remember the 1970s and 1980s when "extradition" was almost a dirty word. It left a sour taste in our mouths. We all have memories of people stringently fighting orders to have them extradited from this jurisdiction to another. Our hearts would have had to have gone out to them. People were brought back to this jurisdiction to serve sentences even though they were not from this jurisdiction. This legislation gets rid of extradition, which is good because I do not believe any of us liked the notion.

As my colleague, Senator Bradford, pointed out, a crime is a crime. After every crime, there are victims. Victims should not be forgotten and should be respected. This Bill does not forget victims. It ensures that nobody will get away but that prisoners will have dignity, will be treated as individuals and will be allowed to come home to serve their time.

Mr. Kett

I thank my colleague, Senator Feeney, for sharing time. I welcome the Minister of State, Deputy Callely. It is a while since we sat shoulder to shoulder on Dublin City Council. He is the living example of what hard work and commitment does for a person. If I ask a question which the Minister of State may have already addressed in his contribution, I apologise. I was at a meeting of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights and could not get here in time to hear him.

In recent weeks, this House has gone through a raft of legislation with the Minister of State and other Ministers. The common thread running through all the legislation on which we have embarked is that it deals primarily with looking after the welfare of our citizens, whether in terms of drugs, alcohol, public order or otherwise. This Bill adds to that in its own way, and I welcome it.

There has been a considerable influx of people into this country in recent years. They have probably come from countries outside the remit of the legislation with which we are dealing. Senator Bradford alluded to the fact we have been looking at this type of scenario since 1985 when the Schengen agreement was introduced. The borders were abolished in 1995 when the convention itself was adopted. I may be wrong but I believe there are 13 signatories to the Schengen agreement but that Ireland and the United Kingdom are not. I am not sure of the reason but maybe I will find out during this debate. We are part of the European Union and must present our passports when we go to other EU countries, with the exception of the United Kingdom with which we have a common travel area.

There has been an influx of people into this country in recent years and while the attraction initially might have been the generous welfare system, people are now beginning to show themselves in court primarily because they have settled into a new environment, have found their feet and know the run of the place. Whether one likes to admit it or not, we are now seeing a type of crime which may be new to us — for example, the fraudulent use of ATM cards and so on. I am not sure whether the Bill can cater for that, but I hope it can. There are scams taking place with which, I hope, we can deal. If this legislation helps in that regard, it is good.

As others outlined, this Bill deals with a person sentenced in this country who perhaps flees to the country of his or he origin without serving a day or having served some of his or her sentence. It gives the Minister the power to request his or her return and to encourage the state to which her or she has gone to take up the sentence the Irish court has imposed. Where an Irish citizen commits a crime in another country and flees to Ireland, that country may seek the consent of the Minister for Justice, Equality and Law Reform to issue an arrest warrant and to return the person, or to seek that the person serves the sentence in this country. Senator Bradford alluded to the fact there are certain circumstances in which the Minister may not send someone back. He asked what those circumstance might be.

Is there a financial implication? Someone may commit a crime here and flee to Belgium and we may ask the Belgian authorities to incarcerate him or her there. The Belgian Government might possibly say he or she could not have committed that crime in Belgium because it has laws or a system in place whereby it could not happen but that the Irish authorities are asking it to incarcerate someone who has committed a crime in another country at a cost to it. Is there a financial implication for whatever country is involved? The legislation also states that in certain circumstances, the Minister can withhold consent. Would that be in circumstances where he or she might disagree with the severity of the sentence handed down or where he or she has a problem with human rights issues in a particular country? While I welcome the safeguards, I wonder if we could be guilty of interfering with the judicial system of another country if we tell it whether a sentence is right or wrong.

The Bill applies to countries which have ratified the Schengen Convention. It also states that the Minister for Foreign Affairs can designate countries in which he or she is satisfied the criminal justice is all right. Does that mean countries which have signed up or can he designate countries outside the European Union or those stated in the legislation? The Minister also has discretion to reject a request from a designated state.

Where a foreign sentence exceeds the maximum available under Irish law, I believe the Minister can consider what the sentence would be in Ireland and reduce it accordingly. I wonder what would happen if the shoe was on the other foot. If a sentence is less than that which would be given in Ireland, would the Minister have the ability to increase it?

If he has the ability to change the sentence in the first instance, can he do so in either direction? If a country hands down a sentence to an individual, should we interfere with that? Should we not take the sentence at face value and ensure it is served, irrespective of whether it coincides with sentences given here?

I welcome the Bill. It is another cog in the wheel which will help us to move forward.

Ms Tuffy

I broadly welcome the Bill, but I have some reservations. It is positive in that it ties in with the Transfer of Sentenced Persons Act 1995. It is right to offer people the chance to serve the balance of their sentence closer to home. I recognise there is a difference here as the Bill deals with people who flee a jurisdiction. I remember — this was mentioned when the Minister for Justice, Equality and Law Reform was here — that when the Joint Committee on Justice, Equality and Law Reform visited Mountjoy Prison we spoke to one of the women prisoners who was from another country, and her dilemma in considering whether to apply to serve her sentence at home was that she perceived the prison system to be much better here. It gives rise to the question of whether a person imprisoned in a state should have the option of going back to the country from which they fled if the prisons are less attractive there. There are human issues we should keep in mind, while acknowledging that the individuals have fled to the country concerned.

On Committee Stage I intend tabling an amendment which would provide for the Minister to make a report to the Houses of the Oireachtas on the operation of this legislation. There is such a provision in section 16 of the Transfer of Sentenced Persons Act and perhaps we should consider including it in this Bill.

Perhaps the Minister could clarify some of the issues I raise when he responds to the debate. One of those relates to the definition for correspondence of offences. What does that mean? It is defined in the legislation, but that is as far as it is defined, and there are different nuances in the way offences are defined in different states. I have raised that issue before. For example, being a member of an organised criminal outfit was included in a schedule in a Bill the Minister recently brought into the House, and we do not have that offence here yet. What exactly is meant by a correspondence of offences, and is the definition too broad?

I am also concerned about the fact that sentencing might be different. I realise there is a subsection that deals with this. We can deal with that issue here, but we cannot protect a person who goes to another country to serve a sentence we have imposed if that country changes the sentence to correspond with its regime. The question is whether that would breach the human rights of the person given that they have been sentenced here and have been subject to our legal process.

Section 6(3) allows for ministerial discretion if there is less than six months to be served, something which is also mentioned elsewhere. Can the Minister clarify what exactly is meant by exceptional circumstances and what type of case he has in mind? In the definition of matters on which the court may make orders, the Minister does not include cases where his or her consent is required where there is less than six months to be served. It is in the Bill but it is not dealt with in terms of when the court is making an order under it. That is something the Minister might need to correct as the Bill goes through the House. On provisional arrest warrants, is there a precedent in any other legislation?

Under section 8(7) the court must be satisfied that a request has been made on behalf of the sentencing country, yet in subsection (7) it is presumed to be the case unless the contrary is proved. Should evidence not be required to be given in the first place, and should it not be required from the outset that a request must have been made by the sentencing country? There is provision for the Minister to reduce a sentence to bring it more into line with the country's sentencing policy in the context of a person serving the balance of their sentence here. However, will we be examining how remission periods compare between countries?

More generally, there are constitutional and human rights issues that we need to take on board. The Bill allows us to recognise that a sentencing regime may be less favourable in another country, but it does not allow us to examine through our courts less favourable legal procedures in another country. If there is a miscarriage of justice, it is left to the person to go back to the sentencing country or to serve the rest of their sentence here. That is not satisfactory. It is totally at the discretion of the Minister or the Government to decide whether the legal system in another country is fair. Surely the court should have a role in that regard. If there is a role, perhaps the Minister would clarify that.

Minister of State at the Department of Health and Children (Mr. Callely)

I thank the Senators for their contributions. I have taken note of the comments made, and the Department officials who are here have taken detailed notes. I am sure my ministerial colleague, the Minister for Justice, Equality and Law Reform, Deputy McDowell, will give those remarks careful consideration.

I remind the House of some of the essential features of the Bill and the arrangements it introduces. Enactment of the Bill will enable Ireland to accede to the additional protocol to the 1983 Council of Europe Convention on the Transfer of Sentenced Persons. It will also enable Ireland to operate part of the Schengen convention package that we have already opted into. The arrangements covered by this Bill are intended to assist in the rehabilitation and reintegration of prisoners who have been sentenced abroad while also ensuring the sentence is served. The person's rehabilitation and reintegration will be facilitated by allowing the person to serve the sentence in his or her home state closer to family, as some of the contributors have indicated, and without language and other such difficulties.

The Bill will also ensure we have an alternative to extradition. Currently where a person flees from the sentencing state to his or her home state the sentencing state has just one option if it wishes to ensure the sentence is served, namely extradition. This is one of the issues Senator Kett raised. Once the Bill is enacted it will be possible for the sentencing state to rely on an additional option that the person should serve the sentence in the home state. That is a significant benefit to the sentenced person while also ensuring the sentence is served.

A number of comments were made. Senator Bradford referred to the number of prisoners transferred to and from the State under the 1983 convention and the 1995 Act. According to the latest available figures, which include up to 29 March, 100 prisoners have been transferred into the State, 57 have been transferred out of the State, 260 applications for transfers have been received by the State, and 175 applications have been made for transfers out of the State. It is not possible to say how many extra prison places will arise or how many prisoners will present under this Bill but it is expected the number of prisoners may be small. I will ask Department officials to write to the Senator with this information rather than try and gather it all today. Extradition arrangements apply if a person goes to a state other than that of his or her nationality, including those within the European arrest warrant system. The Minister will withhold consent on public policy grounds.

The Senator might mention that to the Taoiseach if he thinks I am a suitable candidate. I would be very happy to accept the challenge. I thank the Senator for his kind comment.

I covered Senator Feeney's points in my remarks. I thank Senator Kett for his kind comment. We soldiered together on several issues in Dublin City Council for many years and I appreciate and welcome his frequent advice on various matters. In response to his question about the Schengen agreement, all EU states plus Norway and Iceland are included. We have agreed to join some parts of the agreement but not the abolition of border controls, that is, the free travel areas between Ireland and the UK to which the Senator referred. There may be some costs due to small increases in prison numbers but we have not done the calculations. The sentence period cannot be longer than the maximum available under Irish law. Generally the sentences as imposed will be served here.

If I do not have time to answer all of Senator Tuffy's questions in detail I will ask the officials to write to her. The court will decide if offences correspond. I will check whether there are precedents for provisional arrest warrants. The Senator posed several questions that warrant a full and detailed response and I will ensure a response is forwarded to her. The same applies to the other Senators.

There are several safeguards in the Bill that are significant and substantial. I am pleased to commend the Bill to the House and thank Senators for their very positive contributions.

Mr. Ryan

Can the Minister of State ensure that the detailed responses are available to the Members before Committee Stage commences?

Mr. Callely

We will do our utmost to deliver those responses in time. The Senators will be satisfied.

Question put and agreed to.

Committee Stage ordered for Tuesday, 6 April 2004.