I welcome the Minister of State, Deputy James Browne, and thank him for being here.
Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021: Second Stage
Question proposed: "That the Bill be now read a Second Time."
I am pleased to bring the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021 before the House.
The purpose of this Bill is to implement framework decision 2008/909 on the mutual recognition of custodial sentences, which provides for the transfer of sentenced persons between EU member states. The Bill also amends and updates the existing legislation underpinning transfers for non-EU states, including the United Kingdom.
At present, transfers are conducted under the Transfer of Sentenced Persons Act 1995, which implements the 1983 Council of Europe convention, and the Transfer of Execution of Sentences Act 2005, which implements the additional protocol to that 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 result of Brexit, the framework decision does not apply to UK transfers. The 1995 and 2005 Acts will remain in force, and the UK and other non-EU member state transfers will continue to take place under them.
A natural consequence of freedom of movement within the EU and the common travel area is that an increasing proportion of people live outside their home state. This diversity is reflected in prison populations. In Ireland, one in seven prisoners are not Irish nationals; this is almost exactly in line with the population as a whole.
Prisoners serving sentences abroad face significant humanitarian difficulties beyond those normally arising from the deprivation of liberty, and these difficulties can undermine the goals of rehabilitation and social reintegration. They can arise from language barriers and cultural differences, thereby making it more difficult for persons to engage with other prisoners and with prison services but, perhaps most significantly, they arise from a lack of contact with family and friends.
Hardship is borne particularly by prisoners' families. As this Bill has progressed, I have met the parents of young people imprisoned abroad and am particularly conscious of the pain suffered by those whose loved ones are in prison far away.
The 1983 convention was a major step in facilitating transfers home and it established a relatively simple mechanism that was based exclusively on the consent of all three parties, namely, the sentenced person, the state imposing the sentence and the state being asked to take over its enforcement.
The framework decision brings custodial sentences within the scope of the principle of mutual recognition of judicial decisions within the EU. The most significant change to the process under the convention is that transfers may, under limited circumstances, take place without the consent of either the sentenced person or of the state where the person is being transferred to. The transfer remains a discretion of the state that has imposed the sentence.
I might note in passing that terms used in the framework decision and, accordingly, in Parts 2 and 3 of the Act are "issuing state" to refer to the country where the sentence is imposed and "executing state" to refer to the country where the person is transferring to. The convention uses "sentencing state" and "administering state". As we are discussing both systems, I will use the latter terms exclusively as they are perhaps clearer in meaning.
Non-consensual transfers may arise in two important situations: where the person is a national of the administering state and lived there prior to the imposition of the sentence; and where a person will be sent to the administering state as a consequence of a judgment after the completion of his or her sentence.
It is important to emphasise that an essential precondition of a transfer is that it would benefit the social rehabilitation and successful reintegration into society of that person. This applies whether or not the consent of the person is required and procedural safeguards are in place to ensure that the person may participate in any consideration of a transfer.
The framework decision also applies to situations where a person has fled and the judgment may be forwarded to the State for the purpose of its enforcement here. In appropriate cases, 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.
I referred to the importance of transfers for the persons concerned and their families. I am also extremely conscious of the potential impact on victims of crime of a transfer, and the importance of ensuring victims are both fully informed of the possibility of a transfer and what the consequences of that would be, and can contribute to the making of the decision. This Bill amends the Criminal Justice (Victims of Crime) Act 2017 to place a statutory obligation on the Minister to inform victims not only of a transfer, but of an application for transfer. Provision is then made in the legislation for the Minister to invite or otherwise consider submissions made.
As Senators will be aware, the existing legislation implementing the convention has been the subject of legal challenge in recent years. Differences in sentencing structures between states have proven difficult, and often impossible, to reconcile. This has prevented the completion of many transfers, particularly from the UK to Ireland.
While the issues involved are complex, they stem from the fact that a sentence is rarely simply a term of years to be served in prison. Instead, they incorporate the possibility of accelerated release based on a range of factors, and they may provide for periods after the ordinary completion of the custodial part of the sentence where a person may be returned to prison if he or she does not abide by post-release conditions.
The general approach taken in international prisoner transfer agreements is that the sentencing state determines the legal nature and duration of the sentence, and this is binding on the administering state. Thereafter, the administering state applies its own rules on how the sentence is enforced, covering, for example, in terms of remission.
However, as the Supreme Court decision in Sweeney v. Governor of Loughan House showed, this distinction may be open to question. The court found that certain foreign provisions on conditional release, including those applying by default in the UK, should be treated as part of the legal nature of the sentence. Only part of the sentence, therefore, could be transferred. Similar legal challenges arise under the framework decision.
There are no straightforward solutions to these difficulties, and the possibility of further legal challenge will, of course, arise. Legislation cannot account for every possible sentencing structure which might be in place in another state now and in the future. Accordingly, what the Bill sets out is a flexible mechanism to ensure that both the courts and the Minister have appropriate powers to deal with a range of scenarios.
In brief, that approach is as follows: the definition of sentence expressly includes periods of time which may be served otherwise than in custody; a new power to grant conditional release is provided which allows the Minister to take into account the conditional release provisions applying to the sentence before transfer on a pro rata basis; conditional release measures are considered part of the administration of the sentence and not its legal nature, even where those conditional release measures are automatic and arise by operation of law; and minimum custodial periods applicable to life sentences are not binding but are taken into account by the Parole Board similarly to recommendations made by a court.
The court is also given a general power to take all measures necessary for the enforcement of the sentence and powers to adapt or vary adaptation, or to vary orders made, should issues subsequently arise.
Taken together, and for the majority of sentences typically encountered, these provisions mean sentences will transfer to the State for the full period of possible custody. Irish remission will apply to the part of the sentence served after transfer, and the Minister will have the power to grant conditional release, where appropriate, in respect of the part served before transfer.
Further procedural changes are included, notably the introduction of an inter partes hearing after a person is brought into the State. This ensures any issues in determining the length of time remaining to be served may be definitively resolved at the outset. These provisions are being applied to transfers under both the new framework decision system and the existing convention system.
I will turn briefly to the content of the Bill. While it is long and technically complex, this in most cases reflects the detailed procedures and requirements in place under the framework decision and the alignment of the two existing Acts with the new approach. It would be impractical to discuss every provision, so I will give a brief overview. I am happy to address other issues that Senators may wish to examine, either in the course of this debate or on Committee Stage, as appropriate.
Part 1 deals with general matters in respect of the Bill and notably sets out the respective roles of the Minister and the courts. Part 2 applies where Ireland is the sentencing State. As under the convention regime, decisions in respect of outward transfers are primarily administrative matters for which the Minister is responsible. Part 3 applies where Ireland is the administering State. Responsibilities are split between the Minister and the High Court in respect of incoming transfers. Part 4 provides for a new system of conditional release under the Criminal Justice Act 1960 that will be applicable to transfers under both the convention and the framework decision. Part 5 aligns the Transfer of Sentenced Persons Act 1995 with the approach taken in the framework decision. Part 6 similarly aligns the Transfer of Execution of Sentences Act 2005. Part 7 addresses miscellaneous and consequential matters. Notably, as I have mentioned, it amends the Criminal Justice (Victims of Crime) Act 2017 in respect of the notification to victims when an application is made.
The Bill is certainly complex, but it is a careful transposition of the framework decision into Irish law and reflects the judicial developments that 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 very significant.
I am pleased to commend this Bill to the House and look forward to the Senators' contributions.
I thank the Minister of State for his very comprehensive opening statement. I appreciate this is particularly technical legislation. I stand here between one barrister, namely, the Minister of State, and another, namely, Senator Ward, and I do not profess to have the same level of expertise or training as either of them.
This is welcome legislation. It is interesting to note in the statistics that 39.4% of the Luxembourg prison population is foreign while only 0.3% of the Polish or Romanian prison population is foreign. There are huge differences among EU countries in terms of prison populations being of their own nationalities or other nationalities. I can see where this is of benefit to people detained in one state whose family or background is in another state. The fact they can go back and be detained in another jurisdiction is beneficial possibly to them and certainly to their families in terms of visiting them and so on.
A point that intrigued me, maybe because of my previous time on the finance committee and as an accountant, is that if we get many Irish prisoners sent back from other countries, we are then paying to detain them in Ireland and the other jurisdiction is not. Do we just suck it up, a bit like the postal system in terms of letters arriving and going, and vice versa? I looked at various discussions on this and it never cropped up so I presume we take the hit for the people who arrive here and the foreign jurisdiction takes the hit for the people we send back to it.
This is humane, sensible legislation. It is unfortunate we were supposed to transpose this directive in 2011. We were here last night doing the communications regulation Bill, which was supposed to have been transposed by December 2020. We were two and a bit years overdue on that one. This one was an EU directive that was supposed to be transposed by December 2011 so I will not delay it any further. I welcome the Minister of State and welcome this legislation. Let us proceed to get it done.
Cuirim fáilte roimh an Aire agus roimh an Bille um Cheartas Coiriúil (Aitheantas Frithpháirteach do Phianbhreitheanna Coimeádta), 2021 freisin. Mar a dúirt an Aire, is Bille an-teicniúil é seo agus ba cheart dúinn léamh tríd. Ag an am céanna, mar a dúirt mé cheana féin faoi Bhillí eile, tá fadhb againn leis an slí inar chuir an Roinn an Bille le chéile. I have spoken previously of a difficulty I have with complex legislation and the Minister of State has acknowledged that this is technical and complex. That is attested to by the 110 pages, 86 sections and the Schedule with the framework in it. It is a substantial piece of drafting but I notice that some 17 sections amend other acts, like the Criminal Justice Act 1960, the Transfer of Sentenced Persons Act 1995 and the Transfer of Execution of Sentences Act 2005. I know the Minister of State’s officials are aware I have made this argument before, but it makes it exceedingly difficult for anyone to read the Bill when 17 or more sections are amendments of sections of previous Bills. I very much favour the use of consolidated legislation when dealing with progressive legislative instruments like this that amend a number of pieces of legislation or bring them together. I welcome the moves. They are positive, as has been said by my colleague, and are overdue. We could do it in a way that would take, for example, section 4 of the Act of 1960, repeal it and pass a new consolidated section so there is no doubt about what the provisions in the law are.
Like my colleague, I do not propose to delay the Minister of State in this. There is much in this and I have one or two questions but it is important for us to acknowledge the value of legislation like this. From the outside looking in, one could easily say it is good enough for them, and if they are sentenced to time, let them do the time and suffer the consequences. That is an uncharitable view. There is also a view abroad that prison is easy or somehow a holiday camp. One hears people saying that but it is not. The Minister of State and I in our professional lives have been inside prisons. They are unpleasant, nasty places to spend any length of time. For someone who is hundreds or thousands of miles from home, support networks and family, they are more difficult. We would reasonably say an Irish person detained in a prison in Romania, Poland or wherever it might be without access to family networks should be allowed to serve the balance of their sentence here, close to their support networks. We would see that for an Irish person and it is easy to see why that should apply equally to a Polish or Romanian person who wanted to serve the balance of their sentence there. There is a humanitarian aspect to this legislation that is easily overlooked and I welcome it.
I note what the Minister of State said about the frustration post Brexit with the transfer of sentences between Ireland and the UK. There are important provisions in the legislation. The question I have may not be answerable today. The provisions that allow the State essentially to transfer a sentence to another state without that state’s consent or the prisoner’s consent are relatively easy to operate in the European Union in circumstances where the framework, as amended, applies. There is an obligation under European law for another European Union state to take that prisoner. Where that second or third country is outside the European Union, such as the United Kingdom, how do we enforce that transfer if it is against the will of the other state? I presume it is in the same vein as a deportation or something like that but where the receiving state takes on a greater responsibility than in the case of a deportation, are there mechanisms in place to facilitate that where there is not agreement or co-operation? I can think of plenty of examples of foreign nationals serving sentences here whose home countries would not be delighted to see them coming back under a scheme like this. If they were to resist that transfer, would that cause a problem?
This legislation is overdue. It is welcome and progressive and puts us in line with our European colleagues in an appropriate way. I welcome the legislation and look forward to its passage through the House.
I thank the Cathaoirleach and Senators for their contributions. Regarding costs, I can say that inward and outward transfers offset each other and having this robust system in place will help to reduce costs as well. By way of an indication of numbers to give Senators a sense of this, inward transfer volumes have been significantly affected by the issues arising since the decision in 2014. However during the period from 1996 to 2015, 516 applications were received, which is 26 per annum, and with 153 completed which is eight per annum. Of these, 80% were from the United Kingdom. As transfers have not been progressing for several years now it can be expected that initially there will be an initially high volume of applications as the backlog is cleared. Information provided by EU member states in 2021, not including the United Kingdom, indicates there are 17 pending applications that are likely to be progressed under the framework decision once the legislation comes into force. There are 304 Irish nationals in prison in the United Kingdom who would be eligible to apply for a transfer, however from historical experience the vast majority of such persons are not seeking to return to Ireland. Engagement with the relevant NGOs suggests that there may be approximately 20 or 30 such applications so the numbers are still relatively small. In fairness to my officials who have done fantastic work, there is an informal consolidation of the relevant legislation showing the effects of the amendments on the different Acts. If Members do not have a copy of that, I will make sure they get one.
Question put and agreed to.
When is it proposed to take Committee Stage?
Next Tuesday.
Is that agreed? Agreed.
Committee Stage ordered for Tuesday, 21 February 2023.
When is it proposed to sit again?
Tomorrow morning at 9.30 a.m.
Cuireadh an Seanad ar athló ar 6.55 p.m. go dtí 9.30 a.m., Déardaoin, 16 Feabhra 2023.
The Seanad adjourned at 6.55 p.m. until 9.30 a.m. on Thursday, 16 February 2023.