Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Bill 2018: Second Stage

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

I am very pleased to present this Bill to the Seanad. I am also pleased to report that it received general support on its recent passage through the Lower House. I do not wish to tempt fate or indeed the dispositions of Senators but I hope it might receive similar general support here. The Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Bill will give effect to the provisions of EU Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.

The Bill is quite technical legislation but it has a very simple purpose. Its aim is to facilitate a person who is under the supervision of the probation service in one EU member state but who lives in another member state to return home and continue his or her supervision there. The purpose of a probation order is to prevent reoffending through offender rehabilitation. A key part of rehabilitation is reintegration into the community, and this is very challenging if the person is away from his or her home, family and community. This Bill will create the legal framework to facilitate the return of a person to his or her home country while ensuring that the necessary probation supervision continues and that the legal consequences for failing to engage with that supervision can be enforced, if necessary.

The Bill transposes an EU framework decision and the text of the Bill closely mirrors the requirements of that framework decision. The framework decision is founded on the principle of freedom of movement and the consequent need to ensure that non-residents subject to criminal proceedings are not treated differently from residents. This framework decision is one of a number of measures designed to ensure that the courts have the same options open to them for dealing with non-residents as they have for residents and that the member state criminal justice systems can recognise and enforce one another's judgements as EU citizens move between member states.

The Bill applies to individuals who commit an offence while temporarily in another member state, perhaps on holidays or working or studying abroad for a short period. The benefits of the measure may best be illustrated by some practical examples. If a person living in Ireland goes on holiday to another member state and commits an offence for which the court in that member state imposes a community service order, that person would have to stay in that state, potentially for months, to carry out his or her community service there. He or she would be away from family and perhaps lose a job or accommodation. The consequences could be quite significant for the sentenced person, much more so than for a person resident in the state who is in the same circumstances and receives the same penalty.

Under this Bill, that person could have his or her community service order transferred to Ireland. He or she could return to the State, carry on working and living with his or her family and carry out the community service order under the supervision of the Irish Probation Service. Transferring a probation decision under the Bill requires the consent of the person concerned so it cannot be used to remove a person from one state to another if he or she does not wish to go. The benefits for the individual are obvious and this is likely to encourage compliance with the probation decision. If the person fails to comply with the community service order, the Probation Service could enforce the order through the Irish courts, so the community protection element is there too.

The Bill also provides for probation orders or community service orders imposed by the Irish courts on individuals who are not resident in this State to transfer those orders to the person's home state if the person wishes to return home. An example would be a member state student studying in Ireland over the summer who commits an offence for which a one-year probation order is imposed. Under the provisions of this Bill, that order could be transferred to the person's home state to allow him or her to return home and continue studying while still undergoing the necessary probation supervision to divert him or her from further offending.

There are, of course, many Irish citizens working and living across the EU who could also benefit from the provisions in this Bill. It is important to note that the measure encompasses not only probation and community service orders but also other types of probation supervision, which can arise in respect of more serious offending. These include suspended sentences involving probation supervision and post-release supervision following a prison sentence. This Bill potentially could facilitate the transfer into and out of the State of serious offenders who may have served a prison sentence and are subject to several years of post-release supervision. This is perhaps an even more important aspect of the measure as rehabilitation is so important in such cases. Having somewhere to live and family support will assist such offenders in reintegrating into society and reduce the risk of reoffending. Communities are safer when probation is successful.

I will outline in more detail the contents of the Bill, which contains 32 sections and largely reflects the EU framework decision. Section 2 is a standard general interpretation provision for terms that will be used throughout the Bill.

The section also specifies that any word or expression used in the Act and the framework decision shall have the same meaning unless the context requires otherwise. Section 3 provides that the Act will not apply to a judgment that is handed down before the commencement of the Act. Section 4 specifies that the courts and the Minister for Justice and Equality will be designated as the competent authorities for the framework decision. Section 5 enables the Minister to designate appropriate persons to carry out certain functions under the Bill. Section 6 empowers the Minister to make regulations. Section 7 is a standard provision on the payment of expenses.

Part 2 establishes the rules and procedures to apply where Ireland is the state that issues the probation judgment. Section 10 provides that a request to forward a probation judgment to another member state may be initiated by either the director of the Probation Service or the person who is the subject of the probation decision. Section 11 provides that a probation judgment may only be forwarded to the member in which where the person habitually resides with the person's consent and when any appeal process has been completed. The Minister is not obliged to transfer a judgment to another member state. In limited circumstances, a judgment may be forwarded to a member state other than that in which the person resides, with the consent of that state. Sections 12 and 14 make provision for information flows between the State and the member state in which the person normally resides, including the penalties that will be available if the person fails to comply with the probation conditions and any adaptations of the judgment that the other member state intends to make. The formal transfer of responsibility for the supervision of the person where the other member state agrees to recognise the probation judgment is provided for in section 13. Section 15 provides for the circumstances in which the State may withdraw the request for transfer or seek to have the person returned to the State, for example, in circumstances where other charges are preferred.

Part 3 establishes the rules and procedures to apply where Ireland is the state executing the judgment, that is, where the person subject to a probation order is coming to Ireland to have his or her probation supervised in this State. Sections 17 to 19, inclusive, define a number of important terms in the Part and set out the types of probation measures the State may recognise and supervise under the Bill. Sections 20 and 22 address several procedural steps that may be taken where documentation received is incomplete or sent to the wrong place, and to establish evidential rules. Section 21 permits the Minister to accept a request to transfer a person who is not normally resident in the State from another member state where that person either is an Irish citizen or has close ties to the State.

Sections 23 and 24 establish the procedure for accepting or refusing a request to transfer a sentenced person into the State. The request is first examined by the Minister and may be refused if certain grounds apply. Where no refusal grounds apply, an application is made to the court to endorse the judgment. The court again examines the request for refusal grounds and, if none is present, it is obliged to endorse the judgment. Grounds for refusal include incomplete documentation, immunity, specialist treatment not being available, lack of consent and the judgment falling outside the scope of the framework decision. Section 24 also allows the court to adapt the nature or duration of the probation measure to make it compatible with comparable measures under national law. The purpose of such adaptation is to ensure that the probation measure can be supervised and that national law will apply in cases of non-compliance. If the court endorses the judgment, section 28 provides that the Minister must recognise it and take the necessary steps to begin supervision of the person.

Section 25 makes specific provision for judgments relating to a suspended sentence or conditional release to ensure that such judgments correspond with the comparable provisions in national law. This section also provides that the court must specify the prison to which the sentenced person is to be committed in case of revocation of a suspended sentence or conditional release. Section 26 establishes a time limit of 60 days for the court to make a decision on recognition of a judgment. Section 27 provides for the notification of interested parties. Section 29 sets out the information the Minister must provide to the other member state in respect of a judgment that has been transferred into the State. Section 30 provides that responsibility for taking a decision to revoke a conditional release for non-compliance, where such a decision would have to be taken by a court in the issuing state, remains with the issuing state. Revocation of temporary release is an executive function in this State, so this provision ensures judicial decision-making power is retained in such circumstances. The person may give evidence to the court in the issuing state by video link. Section 31 provides that a person may not appeal the original judgment in the executing state. Finally, section 32 provides that responsibility for the judgment and the supervision of the person will transfer back to the issuing state if the person absconds or is prosecuted for another offence in that State. The framework decision is set out in the Schedule to the Bill.

This is lengthy and technical legislation, which is necessary to ensure that the EU framework decision is fully transposed and to establish a clear and legally sound framework for the transfer of probation orders between member states. Notwithstanding its complexity, its aims are straightforward. It establishes a mechanism to return non-resident offenders to their home country, subject to probation measures, while supporting rehabilitation and ensuring the necessary enforcement options are available to local authorities to ensure the safety of the public. Members will be aware of the valuable work with offenders carried out by the Probation Service. The service has been actively involved in preparing the proposals in this Bill and identifying the structures to be put in place to begin operating the new measures, which can be done without delay. It is difficult to estimate the number of people who may wish to transfer probation supervision under these provisions, but it is not likely to be a great number, at least in the short term. However, for those who find themselves abroad, away from family and community supports, it will be a valuable tool to support rehabilitation and reintegration, with the ultimate goal of providing safer communities. I commend the Bill to the House and hope Senators will find a way to support it.

We support this Bill, the value of which was clearly outlined by the Minister. Supporting people's rehabilitation is what we always should seek to do. However, I am disappointed that it has taken so long to get these proposals to the House. Will the Minister comment on that?

Is the Senator talking about the Roscommon football team?

No. I am talking about the ten years or so it has taken to progress this Bill. Will the Minister explain in his response why it has taken so long?

I thank the Minister for coming to the House. It would be helpful if copies of his statement were circulated to Members. I understand that the aim of this Bill, which was passed in the Dáil on 12 June 2019, is to facilitate persons who are under the supervision of probation services in one EU member state to return to their home member state and continue their supervision there. The Minister said that the Bill is technical in nature but has a simple purpose, and he outlined that purpose clearly. I took the time to read up on the Bill and its provisions make sense. Its purpose is to create a legal framework to facilitate the return of a person to his or her home country while ensuring that the necessary probation supervision continues and that the legal consequences of failing to engage with the supervision may be enforced.

The Minister indicated that probation decisions may only be transferred under the Bill where the person concerned has moved or wants to move back to his or her home state. I am seeking clarification and assurance that the Bill will not and cannot be used to remove a person from one state to another if he or she does not wish to go.

He said the Probation Service will have the structures in place to implement these provisions. I acknowledge the work done by the service, particularly in the area of rehabilitation, which is an important aspect of our judicial system. Will he comment on whether the service has the necessary resources in terms of rehabilitation and reintegration which, as he rightly said, are important facets of the legislation?

I commend the legislation. It makes sense. As the Minister outlined, it is pretty clear and important. I seek reassurance that people will not be forced to go from one state to another against their wishes.

I wish the Minister well and will be supporting the Bill.

Like others, I welcome the Bill. I also welcome the Minister to the House. He is nearly as permanent a feature as the House itself at this stage. This Bill is welcome. It makes common sense. It feeds into the narrative of the importance of restorative justice. It is another angle and approach to restorative justice.

In the previous Seanad, I tabled a motion, passed unanimously by those of all parties and none, on the importance of developing restorative justice programmes in this country. Some are under way, particularly in south Dublin and north Tipperary. As a result of the motion, the then justice committee carried out very impressive work on the potential of restorative justice and community courts. It did a separate piece of work on both. I would like to see this reactivated as a discussion point in the Houses of the Oireachtas that would lead to action points. What was sought in my motion was the extension to the rest of the country, at least on a pilot basis, of the restorative justice programme that was working so successfully in south Dublin and north Tipperary.

We would like to see the pilot community court for the city of Dublin elaborated on and developed. There are better ways of operating than what we have been doing heretofore. This Bill is an incremental step in the right direction. I commend the Minister on making time, despite his very busy portfolio, to introduce this Bill to the House.

Cuirim fáilte roimh an Aire. Tacaím leis an mBille. As the Minister will know from our approach in the Lower House, Sinn Féin supports this legislation, which, as our colleagues have rightly said and the Minister has acknowledged, is complex. It is important, however, that we have a uniform approach to it in this House as it progresses given its significance and importance.

I agree with the remarks of my colleague, Senator Clifford-Lee, on the delay. It is my understanding that the deadline for the implementation of this legislation was 2011. It is disappointing that it has taken so long, regardless of its complexity or otherwise.

There are bespoke arrangements necessary given the experience of the legal system across this island and between these islands. The Minister will know there are a number of well-known and controversial cases in Britain. I am curious, not least within the context of Brexit but regardless of whether Brexit occurs, to know the current arrangements that exist between Britain and Ireland and the North and the South. Are there plans to deal with some of the anomalies and complexities where they present themselves in respect of probation?

I thank the Minister for being here this afternoon. I have no issues with the Bill at all. The Minister touched on most of the relevant points when he went through the sections. My objective has been to gain an understanding of the probation services in each country and how comparable they are across Europe. We are to harmonise probation so probation may be finished in another country. Is there a mechanism to determine that the standard of probation and its implementation are the same as in Ireland? How are the probationary conditions measured from state to state? Consider the case of someone who has the remainder of a sentence suspended. Where sexual offences or offences against a child are concerned, some EU countries have very strong monitoring systems. In Ireland, we do not have sex registers. What are the agreements between the states on harmonising the implementation of the laws? Consider the example of drugs offences. What occurs if someone goes home from Ireland to Portugal, where the Irish drugs offence is not recognised? Does the individual not require any probation because the Portuguese state has completely different laws? These are technical questions on how communication occurs and how the systems are comparable. Where somebody commits a crime of a sexual nature here and returns to another European Union country with a strong sex register or programme for the rehabilitation of sex offenders that Ireland does not have, how is this managed? What are the conversations around this? Does it not matter at all if the probation services are completely different in the country to which the individual is returning home?

I welcome the Minister to the House. I indicate my support for the passage of this legislation. There is a point I often wondered about because it practically arose when I occupied the office the Minister now holds. I refer to the circumstances that obtain when a person is found not guilty by reason of insanity and ordered to be detained in the Central Mental Hospital. If such a person leaves the Central Mental Hospital, on escorted or unescorted day leave or otherwise, which is quite frequently the case, and absconds to a foreign jurisdiction, is there any method of getting him or her back? Is the individual effectively free because he or she has not been convicted and there is no sentence to be imposed? My memory of the problem, which arose when I was Minister, was twigged by paragraph (16) of Council Framework Decision 2008/947/JHA, which reads:

A Member State may refuse to recognise a judgment and, where applicable, a probation decision, if the judgment concerned was issued against a person who has not been found guilty, such as in the case of a mentally ill person, and the judgment or, where applicable, the probation decision provides for medical/therapeutic treatment which the executing State cannot supervise in respect of such persons under its national law.

If somebody charged with murder and acquitted on grounds of insanity is given day release from the Central Mental Hospital, escorted or unescorted, to visit family but absconds to Northern Ireland or somewhere else in the European Union, and has not been found guilty of an offence, the ordinary laws of such a place would not allow the person to be put into a corresponding mental institution. The individual would effectively be able to abscond and set at naught the Irish court's decision.

When I saw the echo in the recitals to the framework directive, I was struck by the fact that we should attempt, if at all possible, to arrange for a new measure - I believe framework decisions are a thing of the past - allowing for the rendition of such people back to the state they left, subject to whatever safeguards are necessary, much along the lines of the European arrest warrant. Without it, it seems there is a little bit of a hole in the system. On one occasion, of which I had knowledge as Minister, there was nothing we could do about it at all.

It is fair to say that the current Bill does not cover the point raised by Senator McDowell, but it is an important point on the basis that the individual in question in the case cited has not been convicted of a criminal offence. I cannot see how there can be a reciprocal arrangement under current Irish law. For example, I do not believe the transfer of sentenced persons legislation between EU states or Council of Europe states covers the point raised by Senator McDowell. I will reflect on the issue between now and Committee Stage. I am happy to come back to it, albeit having regard to the fact that we are not covered.

It is probably outside the scope of the Bill.

I acknowledge the support of the Senators. In answer to Senator Ruane, we are dealing with the recognition of probation judgments and decisions, as distinct from persons who would be serving prison sentences for serious crimes and misdemeanours. However, the point the Senator makes would have application in the event of post-release supervision in a signature country. There would be mutual recognition of frameworks, so it would not be possible for somebody to evade or avoid post-release supervision in one country that would not be applicable here or in another state. For probation and supervision, the framework would be broadly similar, because we are dealing with the application of the principle of mutual recognition of judgments on probation decisions. It is about harmonisation. I think that was the word used.

To come back to what Senator Boyhan said, the purpose of the Bill is simple: to allow a person placed under the supervision of probation services in one EU member state but who lives in another to return home. I acknowledge that there has been somewhat of a delay, as was mentioned by Senator Clifford-Lee. There are a number of reasons for that, the first of which is that the Bill will not have a huge application. It was not considered an urgent priority. Second, I have 115 Bills on my desk at various stages of debate. I availed myself of this window today to progress this one, which, although reasonably limited in application, nevertheless awaits processing. Of those 115 Bills, it is my intention to seek the co-operation of the House to process to finality ten of these over the next four weeks. I acknowledge the co-operation of the House on this Bill.

The Minister will get help with one, anyway.

I plead for co-operation on Thursday, when we come to the important Judicial Council Bill. A limited number of amendments have been proposed to a Bill with a pretty wide, reforming application. We will come back to that on Thursday afternoon.

The Bill before us will increase the chances of social reintegration of offenders by ensuring that the probation measures imposed on a person can be followed up and supervised in the country in which they reside. On resources, similar to my reply to Senator Clifford-Lee, I can tell Senator Boyhan that we do not envisage a huge number of people applying. Therefore, it is unlikely to strain resources in the probation services. If a number of Irish people in EU states wish to return home, the likelihood is that there might well be a corresponding number of persons in this jurisdiction who will wish to avail themselves of the mutual recognition. However, although not many people will seek to avail themselves of a remedy under the legislation, for those who do, it will have a significant impact on their lives. It is therefore important legislation, and I look forward to coming back to discuss the issues in more detail as the Bill passes through the House.

I will respond briefly to Senator Ó Donnghaile, who made an important point about the UK. The UK has opted out of this framework decision, and so these measures will not apply as might otherwise be the case.

Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Tuesday, 25 June 2019.