I move: "That the Bill be now read a Second Time."
The object of this Bill is to enable Ireland to ratify the Council of Europe Convention on the Transfer of Sentenced Persons. It will also enable us to ratify an EU agreement on how the convention will be operated among member states.
Both before and since becoming Minister for Justice I have attached considerable importance to Ireland's ratification of the convention. I am pleased that the priority which I gave to the drafting of this legislation has come to fruition in the Bill. In saying that I recognise that for some considerable time there has been widespread desire on all sides of the House that Ireland should be in a position to proceed to ratify the convention.
The Bill has been warmly welcomed outside and in the House and it would be remiss of me not to acknowledge my appreciation of the work of the Irish Commission for Prisoners Overseas which has played a vital role in this area over the years. I met representatives of the commission early in my term of office to receive a draft Bill designed to enable Ireland to ratify the convention, but apart from the work it has carried out on the Bill it has consistently highlighted in recent years the humanitarian considerations which arise when prisoners have to serve their sentences in another jurisdiction.
The thinking behind the convention — and of the Bill — is that persons serving sentences in other countries may have to endure added suffering beyond that normally involved in the deprivation of liberty. Obvious additional difficulties can arise because of language barriers and cultural differences, but in the vast majority of cases the greatest additional penalty is the absence of contact by the prisoner with family and friends. A major practical concern of the convention is not just to ameliorate the conditions for prisoners, but to alleviate the plight of their relatives and to make visiting easier.
Much of the attention given to this measure since its publication has arisen in the context of the role it will play as part of the consolidation of the peace process. It has that positive and worthwhile role and that will be welcomed by the House, but I believe Members will equally welcome the fact that the convention makes no distinctions based on categories of prisoners. In other words, applications can be made under the convention irrespective of whether there is a paramilitary background to the offences for which people are serving sentences.
The basic aim of the convention is to provide for a simple and expeditious procedure under which persons sentenced in a foreign country can serve their sentence or balance of their sentence in their country of origin if that is their preference.
Before going into some of the background to the convention, and the detail of the individual sections, it might be helpful to make three key points. First, the transfer prodecure is voluntary. The sentenced person, the state to which he or she is seeking a transfer and the state where he or she is serving a sentence all must consent to the transfer. Second, although it is a Council of Europe convention it is not confined to Council of Europe countries. Accession by non-member states is possible and so, for example, the convention applies to the US and Canada. Third, the approach which the convention takes is to set out administrative procedures. The Bill is an enabling one: it is not necessary to include in it matters contained in the convention which can be simply implemented on an administrative basis, but what the Bill contains are the legislative measures which are necessary to enable Ireland to give effect to the convention. On this point I do not believe that there will be any difference of principle between the various sides of the House about the substance of the Bill, but if Members have views about what I might call the technicalities involved I will approach these with an open mind during the various Stages of the Bill.
For a fuller appreciation of some of the issues involved it may be helpful if I set out some of the background to the convention. The initiative for the convention came as far back as 1978 when, at a Council of Europe Conference, Ministers for Justice discussed the problems posed by prisoners of foreign nationality, including the question of providing procedures for their transfer so that they might serve their sentence in their home country. Those discussions led to the setting up in 1979 of a Select Committee on Foreign Nationals in Prison whose tasks included the preparation of a multilateral convention providing for a simple procedure for the transfer of foreign prisoners. The text of the convention took a number of years to prepare and was eventually approved by the Council of Ministers in 1982 and opened for signature in March 1983.
The operative date for the convention, the date it came into force, is 1 July 1985. Ireland signed the convention a year later on 20 August 1986.
Meanwhile, the desirability of facilitating transfers of sentenced persons between member states of the EU was being increasingly appreciated and this culminated in a 1987 EU Agreement which supplemented the convention from the point of view of its application among member states. So far four EU member states have given effect to the EU Agreement, and 27 of the 33 Council of Europe member states — as well as some non-member states — have ratified the convention.
I do not think that any of us would make any bones about the fact that Ireland's performance in terms of pressing ahead with the ratification of this particular convention has been slow. We are now the only remaining EU member state that has yet to ratify. While obviously I can only account to the House for what has happened since I became Minister for Justice, as I understand it some of the delay related to certain concerns expressed about the repercussions the convention might have on an already crowded prison system. While these concerns are not unfounded, they are not insurmountable problems either. In any event I believe there was a growing acceptance on all sides of the House — not least in the context of the peace process — that ratification should not be further delayed. That is why I made it my business on coming into office to give priority to the necessary enabling legislation and thereby fulfil a commitment in the Government programme, A Government of Renewal. As I already indicated, I am very pleased to see it published so soon and debated here today.
The convention does not place an obligation on any contracting party to effect a transfer. Instead, emphasis is placed on the three way consent I have already referred to. Special emphasis is placed on the consent of the sentenced person. Nothing would be gained by transferring someone against his or her will and without the person appreciating fully the legal consequences of such a transfer. Accordingly, consent of the sentenced person must be a voluntary and informed consent.
In addition to that three way consent, the convention lays down four other criteria which must be satisfied before a transfer can take place. The first is that the sentenced person is a national of the receiving state. A contracting party has the option of defining the term "national" by way of declaration to be made when depositing the instruments of ratification to the convention. This possibility is intended to enable contracting states to define "national" in as wide a sense as possible, and so broaden the application of the convention to cover, say, persons who, though not strictly speaking nationals, may have close ties with the receiving state. A similar approach arises under the EU Agreement, which supplemented the convention, to the extent that between EU member states, a national of one member state is regarded as a national of another where a transfer is considered appropriate and taking into account the person's habitual residence.
The other three prerequisites for a transfer are: that the sentence imposed on the person is final, that the sentenced person has normally at least six months of the sentence left to serve and that the offence for which the sentenced person is imprisoned would constitute a criminal offence if committed in the receiving state.
Under the convention the receiving or administering State is given a choice between two ways of enforcing the sentence imposed by the sentencing state. It may continue to enforce the sentence, in which case it is bound, subject to any necessary technical modifications, by the nature and duration of the sentence as determined in the original sentencing state: or, alternatively, it may convert the sentence into a decision which substitutes a sanction prescribed by its own law for the sanction imposed in the sentencing state.
As regards transfers of prisoners into this country, the Bill proposes to use the procedure of continued enforcement which is considered the more straightforward of the two procedures provided for in the convention which should operate with greater certainty and thus generally in the best interests of the sentenced person. Legal authority for the continued enforcement in the State of a sentence imposed by a foreign state will be provided by way of warrant issued by the High Court. The warrant will issue on foot of an application to that court by me, as Minister, I have consented to the transfer. The involvement of the High Court was considered the safest legal approach from a constitutional law point of view. When the High Court warrant has issued and the sentenced person is transferred into the State the person will be subject to the same rules governing administration of sentence as any other person sentenced in the State, for example, with regard to remission etc.
As regards transfers out of the State, obviously we have no extra-territorial jurisdiction and therefore are unable, to legislate for the nuts and bolts of how a sentence will be enforced in another jurisdiction but, of course, parties to the convention will enforce the sentence in line with the terms of the convention. The facilitation of transfers abroad is treated under the Bill as an entirely administrative function as distinct from involving a judicial process. The Bill provides a legislative basis for the exercise of that administrative function. In keeping with the aim of the convention to provide a speedy and simple mechanism for transfers, the Bill provides that the legal authority for transfers out will be simply by way of warrant issued by me as Minister and there is no need for application to court.
I mentioned earlier that concerns had been expressed about the impact the convention might have on prison population numbers here. It is fair to say that the convention could impact on this country more than on others because, on the one hand, we have a relatively small population of foreigners — about 180 —in our prisons today while on the other, we know that the number of Irish nationals serving sentences abroad at any given time far exceeds that number. The latest available figures indicate that there are at least some 600 Irish nationals imprisoned throughout the world who would be eligible to have their case considered.
Clearly not all those persons will be interested in a transfer. Nonetheless, there is a potential problem because the number of potential transfers into the State is far far higher than the number of potential transfers out. While I certainly do not wish to have to stand in the way of transfers and am keen to facilitate people where at all possible, the reality is that I have a duty to guard against placing an intolerable burden on our prison system. The best approach to this would be to draw attention to the problem when ratifying the convention and to enter an appropriate reservation at that time.
This would allow the necessary flexibility between playing our full part in implementing the convention and avoiding unsustainable pressure on prison accommodation. I acknowledge freely that, in the absence of the convention being in force, it is difficult to ascertain precisely the likely level of interest there will be in applications under it. Certainly it should be borne in mind that very many Irish nationals serving sentences abroad — particularly in the United Kingdom — have long-established roots ther and would have no interest in returning here. It is worth nothing that at one stage the Irish Commission for Prisoners Overseas estimated that the number of prisoners seeking a transfer to here would be about 40 and would level off at fewer than ten annually subsequently. It has to be borne in mind too that, if needs be, applications into the country could be dealt with on a phased basis. If an inordinate number of applications were to be received it will always be the case that the Minister for Justice can withhold consent to transfers.
Before I outline the main provisions of the Bill itself, I reiterate that the Bill does not actually implement the convention. Rather it is an enabling Bill, a means to an end, a necessary prerequisite to ratification of the convention. The convention itself is really only enabling as well, in the sense that it confines itself to providing the procedural framework for repatriation of sentenced persons. It places no obligation on contracting parties to agree to a transfer. It follows that many of the convention's provisions need not be laid down in statutory form and can be dealt with more speedily in an administrative way. Accordingly, the Bill is relatively short and succinct and does not elaborate beyond what is necessary to comply with our eventual obligations under the convention.
Section 1 deals with interpretation and follows closely the definitions in the convention. By subsection (2) the possibility for transfer into the State relates not just to persons detained in foreign prisons, but also to persons of any age who, by reason of incapacity or young age, are detained in places other than prisons, such as hospitals. Sections 2 and 3 deal with applications and legal authority for transfers of persons outside the State, that is, the outward traffic. Under section 2 applications for transfer must be made in writing to me, as Minister, by the sentenced person concerned. However, if the person is unable to apply him or herself, by reason of their young age or physical or mental condition, application may be made on their behalf by an appropriate person, such as a parent or a doctor.
Before an application can be granted the conditions for transfer, as laid down by the convention, must be met. The first condition is that the applicant is a national of the receiving or administering state. However, where the person is a national of another EU member state which has ratified the 1987 Agreement that person may be deemed to fulfil this condition.
The second condition is that the sentence must be final and enforceable. In other words, all available remedies must be exhausted, or the time limit for lodging an appeal against sentence and/or conviction has expired. However, this does not preclude the possibility of a later judicial review of the sentence or a petition for pardon in light of fresh evidence under the Criminal Procedure Act, 1993.
The third condition concerns the length of sentence still to be served. Normally this must be of at least six months' duration or be indeterminate. However, in exceptional cases, this requirement need not be rigidly complied with and, provided the receiving or administering state agrees, a transfer can be effected where there is less than six months left to serve.
The fourth condition is that the transfer must be voluntary — the sentenced person must consent freely and with full knowledge of what the legal effect of his/her transfer will be from the point of view of both jurisdictions. Consequently, the convention and the Bill, in section 2, subsection (5), lay particular emphasis on the necessity for full and informed consent, since quite clearly transferring someone without such consent, would lack fairness and be ultimately counterproductive. There may be times though when someone is just not in a position to give consent, for example, when a person is too young or suffering from mental disability. In those circumstances, it is proposed that consent be given by an appropriate person on their behalf. Again, such an appropriate person might be a parent or a medical person.
The fifth condition is that the offence concerned would constitute a criminal offence if committed in the administering state. This is intended to ensure compliance with the principle of dual criminal liability. It is not necessary that the criminal offence be precisely the same in all respects under both the law of this jurisdiction and that of the sentencing state, but some element of comparability is necessary.
The sixth and final condition is that the administering state must also agree to the transfer. Therefore, this condition confirms the convention's basic principle that a transfer requires the agreement of the two states concerned.
Section 3 of the Bill provides that the legal authority for the transfer of a person out of the state will be by way of warrant issued by the Minister for Justice. The warrant provides authority for the taking of the sentenced person to the point of departure from the state — which will normally be an airport — and for handing him or her over to the escorting officer authorised by the administering state. While the delivery and removal of the sentenced person is being effected, he or she will be deemed to be in legal custody.
After a person has been transferred, the sentence imposed by this jurisdiction will continue to be enforceable so that if, for instance, the person should escape from lawful custody he or she would be liable to be taken into custody on foot of the original court order made.
The sentence will cease to be enforceable, however, when the receiving or administering state considers enforcement to have been completed. Clearly we do not want to have a situation where a person who is granted the equivalent of full temporary release in a foreign state would be liable to arrest and imprisonment should the person return here. Accordingly section 3 (7) provides that the Minister may direct that the sentence be varied or cease altogether to give effect to the convention.
The procedure for transfers into the state, that is, inward traffic, is set out in sections 4 and 5. The grounds for a transfer to all intents and purposes are the same as those for outgoing transfers just outlined. The one significant difference is the role the High Court has to play in providing the legal authority for the transfer when it has been consented to. I will return to that in a moment.
Applications for inward transfer must be made in writing, this time by the sentencing state. Again, the necessary conditions for transfer must be met and there must be no doubts as to the sentenced person's full and informed consent. When I, as Minister, have satisfied myself that those requirements have been met and I agree to the transfer, it would be a matter for me to apply to the High Court for the issue of a warrant providing legal authority for bringing the person into the State and the continued enforcement of the sentence here.
The role of the High Court is set out in section 5. In sum, the court must issue a warrant if satisfied that the necessary conditions for transfer have been fulfilled. In issuing a warrant for continued enforcement, the court will be bound by the type of penalty and duration of sentence as determined by the sentencing state. There may be cases, however, where the legal nature or duration of the sentence imposed in the foreign jurisdiction will be incompatible with the law of this State. This could arise by reason of different penal systems with regard to the division of penalties, or the minimum or maximum length of sentences prescribed. In such cases the High Court may, under section 5 (5), adapt the sentence to one prescribed by the law of this state for a similar offence. The adaptation procedure must take place within the limited boundaries specified in subsection (6): the adapted sentence must, as far as practicable, correspond with that imposed by the sentencing state. It must not aggravate the sentence imposed in the sentencing state and must not exceed the maximum sentence prescribed by the law of this state for a similar offence. In other words, the High Court may adapt the sentence to the nearest equivalent available provided this does not result in a longer sentence so that the sentenced person is no less well off from the point of view of length of time still to be served.
The issue of the warrant will mean in practice that the balance of the sentence to be served will have the same effect as if it were a sentence imposed here. It will not be subject to appeal since that remains the prerogative of the sentencing state but, in all other respects, it will be served in precisely the same way as a sentence imposed here, and so be subject to all the normal rules governing administration of sentence generally, remission and temporary release.
Enforcement will cease sooner than it would do in the normal course where notification is received from the sentencing state of any decision taken there other than one concerning remission which would mean in effect that the sentence would no longer be enforceable in that state. This could happen where there has been a quashing of the conviction by the sentencing state.
Section 6 provides for the legal custody of the person being transferred into the State in accordance with a High Court warrant and the designation and powers of persons authorised to take the person to and from any place under the warrant. Under the convention the sentencing state alone has the right to take decisions on applications for review of conviction. The exclusive competence of the sentencing state in this regard is justified by the fact that review of sentence is not part of enforcement per se and, in any event, the sentencing state is for obvious reasons better placed to re-examine the material evidence. That said, the receiving or administering state must not stand in the way of enabling a person who has been transferred to seek review of a sentence. If the outcome of such a review is that the sentence be quashed, the administering state must reciprocate and terminate enforcement as soon as it is notified of any such decision or measure.
Section 7 contains a general power for the Minister or the High Court, as the case may be, to revoke or vary the warrant under which the person has been transferred either out of or into the State, where necessary in order to give effect to the convention. Section 8 proposed the standard from of expenses provision and section 9 is the short title. Those are the Bill's main provisions.
I said at the out set that I have given priority to this Bill. It will have very positive benefits for Irish nationals who are serving sentences abroad in foreign prisons and particularly for their families. Equally, it will also provide an avenue of hope for those non-nationals who happen to have been sentenced in this jurisdiction but who would prefer to be in their home country.
I will, of course, consider with an open mind any points of detail raised by Deputies. Given that this Bill is fulfilling our responsibilities as a member of the Council of Europe, the humanitarian nature of what is being proposed and the part this measure will play in the consolidation of the peace process, I am confident it will be welcomed by all sides of the House.
