Select Committee on Justice debate -
Wednesday, 10 Nov 2021

Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021: Committee Stage

Chairman

We will commence our meeting. We have received no apologies. We are here to process Committee Stage of the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021. I welcome the Minister of State at the Department of Justice with special responsibility for law reform, Deputy James Browne. Members will be aware of the norms of behaviour in our new hybrid world. Members can participate from the rooms within the campus. In the event that a is division called, members will be requested to attend the committee room for that purpose. If members wish to speak, I ask them to catch my eye in the room here or to raise their hand using the Microsoft Teams function. At this stage we are all quite proficient in all of that.

With out any further ado we will move on now to the Bill. I ask that the Minister of State make some remarks at the end rather than at the start, if that is in order. He will, of course, want to take us through the different sections, as amendments arise. Only four amendments have been tabled, all of which are by the Minister, and no members have any amendments down for this particular Bill. We will begin our deliberations then.

Section 1 agreed to.

SECTION 2

Chairman

Amendments Nos. 1 and 2 are consequential on amendment No. 4 and they will be all dealt with together as they are related.

Minister of State at the Department of Justice (Deputy James Browne)

I move amendment No. 1:

In page 7, line 15, to delete “European Union, and” and substitute “European Union,”.

I thank the Cathaoirleach. Amendments Nos. 1, 2 and 4 are to be taken together and allow for non-European Union states operating to a framework decision. This is particularly relevant for Schengen-associated states, Liechtenstein, Norway, Iceland and Switzerland, which are not EU member states. The new section would allow states to be designated based on an agreement between those state and the EU. There are ongoing discussions with the EU Commission on the appropriate scope here and it is likely that we will make a further amendment on Report Stage based on those discussions. At the moment the Schengen-associated states are currently listed in the text of the Act and we expect these to be removed on Report Stage and to rely solely on the designation power. That covers all of these various amendments.

Deputy Thomas Pringle

On the various amendments that the Minister of State has outlined where other Schengen member states can benefit from the section, will this Bill address all of the anomalies where there would not be a comparative sentence in Ireland as one would might have in other member states whereby visitors can apply for repatriation in that regard?

Deputy James Browne

Yes, I will flag that on a later Stage but I am happy to deal with that point now. The hope was to bring a number of significant amendments on that on Committee Stage. Due to the complexities of these issues, they were not ready for Committee Stage but they will be ready on Report Stage. Again, due to their complexity I am happy to share those amendments in advance with the committee in order that it might have a look at them as I do not just want to land them on members on Report Stage. I had hoped to have them today but because of the complexity of trying to transfer over, in particular in the context of the situation in the UK, where prisons are released with significant restrictions, the issue then arises as to how that can be implemented in Ireland where we do not have similar restrictions. I will also touch on that a little later.

Deputy Thomas Pringle

I appreciate that.

Deputy Michael Creed

Can the Minister inform the committee as to when that might be, please?

Deputy James Browne

We are hoping to have this entire Bill through the House before Christmas and, therefore, we are aiming to have these amendments available as soon as possible and we are looking at the first week of December.

Deputy Thomas Pringle

That will hopefully give us enough time to examine these before they are introduced in the House in order for us to be able to-----

Deputy James Browne

We will give committee members as much time to consider the amendments in advance as possible because this Bill must be passed to meet Schengen requirements.

We will certainly facilitate the members. As soon as I get the amendments, I will send them across.

Chairman

I call Deputy Howlin.

Deputy Brendan Howlin

I had not intended to speak but I will ask one question. It is not particularly germane but is a general question on the number of prisoners who have been repatriated under the agreements in place. I understand that, as we discussed on Second Stage, nobody has been transferred in the last five years. Does that remain the case and are there any prospective transfers?

Deputy James Browne

I am told there was one transfer very recently. However, the position remains the same in that it is very difficult because of the decisions in the courts here in Ireland to try to meet those criteria in terms of how we implement restrictions that are put on prisoners in the UK. Effectively, it is almost impossible to apply them because we do not have those same restrictions here and prisoners could be let out very early, without restrictions, if they were brought back home. That is what we are going to try to resolve. I am not sure about the situation with the one particular case that we were able to manage. I assume the restrictions on early release that were put in place were able to be implemented here in Ireland, whatever they were, and I do not have the details of the particular case to hand. Certainly, we have had a five-year period where, in effect, it was almost impossible for any prisoner transfers to happen and that is obviously having a serious impact on them and their families.

Deputy Brendan Howlin

Is it envisaged that there will be a substantial change in the numbers? If we review this Act in, say, two years' time, will the Minister of State and his Department envisage that there would, at that stage, have been a number of prisoners transferred into this jurisdiction from other jurisdictions? In terms of where we stand with the United Kingdom being outside the European Union, how many prisoners from the United Kingdom would be envisaged? Would it be expected that they would be the majority?

Deputy James Browne

A bit of a backlog would be expected because there have been so few transfers and, as I said, there has only been one in the last five years. For some of those who wanted to transfer five years ago, their prison time would have passed anyway. The estimate is that there may be a backlog of about 30 to 40 and once they are dealt with, we are probably looking at about ten per year thereafter. Again, depending on how the amendments work out and what we put in place, those prisoners will have to make a consideration as to whether or not they would still want a transfer. That is the big question, whatever system is put in place.

Amendment agreed to.

Deputy James Browne

I move amendment No 2:

In page 7, line 20, to delete “2011;” and substitute the following:

“2011, and

(c) a state that is declared under section 58 to be a Member State;”.

Amendment agreed to.

Section 2, as amended, agreed to.

SECTION 3

Question proposed: “That section 3 stand part of the Bill.”

Deputy Thomas Pringle

We may wish to come back to this section on Report Stage.

Chairman

That is in order.

Question put and agreed to.

Sections 4 to 11, inclusive, agreed to.

SECTION 12

Question proposed: “That section 12 stand part of the Bill.”

Deputy Thomas Pringle

This section provides that the sentenced person should be provided with the opportunity to give his or her opinion in regard to an application. What weight is given to the sentenced person's opinion in deciding it? Is it just that sentenced persons are asked for their opinion or do they have an actual say?

Deputy James Browne

I thank the Deputy for raising this. It is an area I wanted to flag when we got to this section. As I said, we are considering the additional provisions that are required in respect of sentenced persons in regard to their opinion and their consent and, in order to ensure it is fully informed, we are looking at what additional safeguards are required around that. The idea would be that, in order to approve the forwarding of the judgment, the Minister must be satisfied that the transfer would facilitate the sentenced person’s social rehabilitation and successful reintegration into society. The opinion of the person is an important feature of this assessment and the Minister is required to consider that opinion. It will be a legal requirement and I expect we would have to show that it was given appropriate weight. We are looking at this to see what further additional safeguards would be required and this may come up on Report Stage.

Deputy Michael Creed

In the context of the Minister of State’s reply to Deputy Pringle, what obligation, if any, is there to consult, inform or notify the victim of the crime?

Deputy James Browne

Under section 16, there is provision for the Minister to invite views and opinions from other parties, and that would include the victims. It will be a matter for the Minister of the day to do that, effectively, if he or she thinks it is appropriate at that point in terms of making that key decision to transfer. It will be a discretion of the Minister of the day. I suppose the Minister of the day will take into consideration what the nature of the crime was and who the victim was.

Deputy Michael Creed

If I understand it correctly, it is optional and the victim "may" be consulted.

Deputy James Browne

That is correct. It is a matter for the Minister of the day to take into consideration whether he or she wants to hear from any victim in circumstances where there may be a particular victim. For example, with financial theft, while, of course, there may be knock-on victims and financial theft is a very serious matter, there may not be a particular person who is the victim. The Deputy is correct that there is no mandatory requirement for a Minister to seek the views of the victim.

Chairman

Is the Deputy okay with that position?

Deputy Michael Creed

I note the Minister of State's reply.

Chairman

You have learned the language.

Question put and agreed to.

Sections 13 to 29, inclusive, agreed to.

SECTION 30

Question proposed: "That section 30 stand part of the Bill."

Deputy James Browne

I wish to flag a number of potential amendments on Report Stage. The Deputies will recall that I indicated we would bring forward amendments as the Bill progressed to address prisoner transfers under the Council of Europe convention, which, notably, covers the United Kingdom. That is still my intention.

A proposal has been prepared and final legal advice is awaited on its implementation. While we expect to progress this quickly, it has not been possible to finalise these amendments in time for the meeting of this committee. When the amendments have been completed, I will happily circulate these to committee members in good time and ahead of their consideration on Report Stage and will meet the committee, either as a group or individually, to consider the proposals. Department officials are also available to brief, if necessary, on these amendments that will be prepared.

Deputy Brendan Howlin

I have a general question on the ongoing discussions with the Government of the United Kingdom. There is a certain frisson of difficulty between the European Union and the UK Government right now. Is this particular matter - and other justice-related matters - being pursued bilaterally by the Department with the Ministry of Justice in the United Kingdom right now? Is it the Minister of State's expectation that other issues that are transpiring, even an acceleration of trade difficulties, for example, would not impact on his expectation that these matters would be advanced in the timeframe that he has set out?

Deputy James Browne

There continue to be ongoing bilateral discussions between here and the United Kingdom. It would be important, whatever disputes arise in the context of the protocol and the trade agreements, that these would not affect matters such as this or any other matters of justice or security, and that we would keep those bilateral conversations going. I do not expect that there will be any difficulties falling out from any other challenges that are ongoing between the UK and the European Union at present.

Deputy Brendan Howlin

Has the Minister of State bilateral contacts directly with the newly appointed Secretary of State for Justice in the United Kingdom? Is that the way business is currently transacted between Ireland and the UK?

Deputy James Browne

Certainly, at present, it is happening at an official level between the various officials. As ever, if either I or the Minister, Deputy McEntee, needs to have a direct conversation with our counterparts, they will happen too.

Deputy Brendan Howlin

I thank the Minister of State.

Question put and agreed to.

Sections 31 to 33, inclusive, agreed to.

SECTION 34

Deputy James Browne

I move amendment No. 3:

In page 24, between lines 18 and 19, to insert the following:

"(7) Where a court or person employed by, or acting for or on behalf of, the public administration of the State receives a judgment and a Framework Decision Certificate in respect of the judgment directly from the competent authority of an issuing state, the court or person, as the case may be, shall—

(a) as soon as practicable send or arrange for the sending of, the judgment and the Framework Decision Certificate to the Minister, and

(b) as soon as practicable so inform the competent authority of the issuing state by any means capable of producing a record in writing.

(8) For the purposes of this Part, the sending of a judgment and Framework Decision Certificate to the Minister under subsection (7)(a) shall be deemed to constitute the forwarding of the documents.".

This is a technical administrative amendment. It provides for situations where a judgment is forwarded to the incorrect State authority, for example, directly to the Director of Public Prosecutions, DPP, or the courts. It provides for the State authority to send it to the Minister and provides that the time only runs for the applicable deadlines from the point it is actually sent to the Minister. In a case where person somebody from another state inadvertently sends it to the DPP or the courts, the time would not run until it is conveyed on to the Minister.

Amendment agreed to.

Section 34, as amended, agreed to.

Sections 35 to 52, inclusive, agreed to.

SECTION 53

Question proposed: "That section 53 stand part of the Bill."

Deputy James Browne

I want to flag a potential amendment. This section provides for the surrender and return provisions where a person is surrendered with a condition that he or she will be returned to serve his or her sentence. As a consequence of changes introduced on foot of the Brexit trade and co-operation agreement, TCA, it will require further amendment as a relevant warrant may now include both a European arrest warrant or a surrender warrant under the TCA. Returns under European arrest warrant, EAW, will take place under the framework decision but special provision will be required for a return of persons under a TCA surrender warrant.

Deputy Brendan Howlin

Can I again ask a question for clarity?

Chairman

Yes.

Deputy Brendan Howlin

In relation to the trade and co-operation agreement and the impact of that on a European arrest warrant, would the Minister of State give us the reassurance that it would be possible to execute a warrant, either a European arrest warrant or similar, under these arrangements notwithstanding the fact that the United Kingdom is no longer part of the European Union?

Deputy James Browne

With the UK leaving the European Union, European arrest warrants will no longer apply to the UK. The amendment here would effectively mirror the European arrest warrant situation. I am assured that even if there is a collapse in the trade agreement this would still stand in terms of an agreement between ourselves and the United Kingdom but I will get further clarity for the Deputy on that.

Question put and agreed to.

Sections 54 to 57, inclusive, agreed to.

NEW SECTION

Deputy James Browne

I move amendment No. 4:

In page 46, between lines 11 and 12, to insert the following:

"Declaration of state to be Member State

58. The Minister may, by order, made following consultation with the Minister for Foreign Affairs, declare a state, other than a state referred to in paragraph (a) or (b) of the definition of "Member State" in section 2(1), to be a Member State for the purposes of paragraph (c) of that definition, where he or she is satisfied that the state has, by agreement concluded by the state with the European Union, agreed to implement and apply—

(a) the Framework Decision, or

(b) an act or measure taken by the European Union amending or building upon the Framework Decision.".

As I referred to earlier on amendments Nos. 1 and 2, this new section has been added to allow for the possibility of non-EU member states adopting the framework decision and being included. The Bill currently applies to all EU member states and, of course, Schengen associated non-EU member states, namely, Liechtenstein, Norway, Iceland and Switzerland.

Amendment No. 4 will allow the Minister for Justice, in consultation with the Minister for Foreign Affairs, to declare a state, not already covered by section 2, a member state for the purposes of this legislation under the condition that such an agreement has been reached by the said state and the European Union. A similar designation provision was added to the Criminal Justice (Smuggling of Persons) Bill to achieve a similar purpose. It is a preference of the Attorney General’s office to exercise this designation power and to still explicitly include the existing Schengen-related non-EU member states rather than designating them by means of a statutory instrument.

Deputy Pa Daly

The Minister of State mentioned earlier that the issue preventing the transfer of prisoners from the UK is the difference in the sentences and licenses and the incompatibility of the type of sentence here, given that UK sentences have a great deal of time served on licence rather than in jail, with up to 50% remission. The courts here have had difficulty with the rights of prisoners with natural justice being served in the transfer over of sentence. Are there any plans to address that or is that what we are waiting for in December?

Deputy James Browne

That is what we are waiting for in December.

Deputy Pa Daly

I will allow that to stand, with a right to revisit this matter depending on what is presented.

Deputy James Browne

I agree completely, and, as I say, my officials or I will be available to discuss those amendments in advance with the Deputy or with any of the members here, either as a group or individually, once they are ready and in whichever way required in order to ensure that those amendments are fully considered in advance of Report Stage.

Chairman

I appreciate the Minister’s accommodation in that regard, which will hopefully be of assistance to the Deputy and the committee.

Amendment agreed to.

Section 58, as amended, agreed to.

Schedule agreed to.

Title agreed to.

Bill reported with amendments.