I move:
That Dáil Éireann approves the terms of the Council of Europe Convention on the Transfer of Sentenced Persons signed at Strasbourg on 20 August 1986, as supplemented by the EU Agreement on the Application among the Member States of The European Communities of the Council of Europe Convention on the Transfer of Sentenced Persons signed at Brussels on 25 May 1987, copies of which were laid before Dáil Éireann on 24 July, 1995.
The House will be aware that under Article 29.5.2º of Bunreacht na hÉireann:
The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.
While in the Transfer of Sentenced Persons Act, 1995, the House has made the necessary legislative provisions to give effect to the Council of Europe Convention on the Transfer of Sentenced Persons, as well as the supplementary EU Agreement, the motion before the House today is necessary under Article 29.5.2º to enable us to proceed with the ratification of the Convention and the Agreement.
Obviously the Government — and I believe all sides of the House — is anxious, particularly in the context of the consolidation of the peace process, that ratification should proceed without delay. This is the first available opportunity for the House to pass the necessary motion since the President signed the Bill into law on 17 July last.
Since its publication in April last, the transfer of sentenced persons legislation has received a positive welcome outside and inside the Oireachtas. It was the subject of a very thorough and constructive examination by the Select Committee on Legislation and Security. It underwent considerable amendment during its passage in the House and its provisions have been significantly improved as a result.
Many of the amendments which we made arose from representations made by the Irish Commission for Prisoners Overseas and I am sure that all Members will join me in paying tribute to the role which that organisation played in this area generally and, particularly, in relation to the legislation. It is fair to say that the legislation as enacted represents a comprehensive and effective measure I am sure we are all pleased to see having been passed into law so quickly.
It is no secret that the measures necessary to give effect to the Convention were long overdue. I can assure the House that the delay in bringing forward the necessary legislative proposals did not arise through any lack of commitment on my part. On the contrary, I made it my business on coming into office to give priority to the necessary legislation and thereby fulfil a commitment in the Government's programme. It gives me great pleasure, therefore, that we have reached the stage at which I can put this motion before the House.
The thinking behind the Convention — and of the Act — is to address the position of persons serving sentences in other countries who may have to endure added suffering beyond that normally involved in the deprivation of liberty itself. Obviously, additional difficulties can arise because of language barriers and cultural differences, but in the majority of cases the greatest additional penalty is the absence of contact by the prisoner with family and friends. Indeed, a major practical concern of the Convention is not just to ameliorate the conditions for prisoners but also to alleviate the plight of their relatives, particularly through making visiting, and the maintenance of contact generally, easier.
Much of the attention given to the Transfer of Sentenced Persons Act has arisen in the context of the role which it will play as part of the consolidation of the peace process. Certainly it has that positive and worthwhile role and I know that is very much 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 expenditious 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.
It might be helpful to highlight three key aspects. First, the transfer procedure 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 United States and to Canada. So far 26 of the 36 Council of Europe member states — as well as five non-member states — have ratified the Convention. Also four EU states have given effect to the EU Agreement on the operation of the Convention among member states. Third, the approach which the Convention takes is to set out administrative procedures. The Transfer of Sentenced Persons Act is an enabling one: it was not necessary to include in it all the matters contained in the Convention, many of which can be simply implemented on an administrative basis. What the Act contains are the legislative measures necessary to enable Ireland to give effect to the Convention.
Obviously a key consideration in bringing forward this measure is its likely implications for prison accommodation. While, clearly, concerns arise in this regard I believe they are not insurmountable and that what will be at issue in practice is drawing the right balance on humanitarian grounds, between facilitating transfers as much as possible and at the same time ensuring that undue pressure is not placed on our parison system.
The Convention could impact on prison population in terms of numbers in this country somewhat more so than it might do on others. This is because, on the one hand, we have a relatively small population of foreigners in our prisons today — about 180. On the other hand, we know that the number of Irish nationals serving sentences abroad at any given time far exceeds that figure. 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 cases considered under the terms of the Convention.
Clearly, not all those persons would be interested in a transfer and, indeed, in all probability only a small minority of them would be, but we have to be conscious of the fact that there may be a difficulty because the number of potential transfers into the State is higher than the number of potential transfers out. While I certainly do not wish to stand in the way of transfers unnecessarily, and would be 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 this potential problem when ratifying the Convention and enter an appropriate reservation at that time. This I propose to do by indicating at the time of ratification that Ireland reserves the right to limit the excess of inward over outward transfers in the light of the availability of prison spaces, and will regard the degree of closeness of applicants' ties with Ireland as a primary consideration.
This will allow the necessary flexibility between playing our 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. It should be borne in mind that many Irish nationals serving sentences abroad — particularly in the UK — have long-established roots there and would have no interest at all in returning here. It is worth noting that at one stage the Irish Commission for Prisoners Overseas estimated that the number of prisoners seeking a transfer here would be about 40 and would level off at less than ten a year 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 I, as Minister for Justice, can withhold consent to transfers.
The Convention does not place an obligation on any contracting party to effect a transfer. Instead, emphasis is placed on the three-way consent to which I have already referred. Special emphasis is placed on the consent of the sentenced person. There would be nothing to be gained by transferring someone against his will and without the person appreciating fully what the legal consequences of the transfer might be. Accordingly, the consent of the sentenced person must be a voluntary and informed consent.
In addition to that three-way consent, the Convention lays down other criteria which must be satisfied before a transfer can take place which I will mention later.
Under the Convention the receiving or administering state can opt for one of two ways of enforcing the sentence imposed by the sentencing state: it may choose to 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 choose to 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 Act enables us to use the procedure of continued enforcement, which is considered the more straightforward of the two procedures provided for in the Convention and should operate with greater certainty and, thus, generally in the best interests of the sentenced person. At the time of ratification we will be making a declaration to the effect that it is the continued enforcement procedure which Ireland will use. The Act provides that legal authority for the continued enforcement in the State of a sentence imposed by a foreign state will be 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 once I have consented to the transfer.
As regards transfers out of the State, we have no extra-territorial jurisdiction and are unable, therefore, to legislate for the nuts and bolts of how a sentence will be enforced in another jurisdiction, but 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 Act as an entirely administrative function as distinct from involving a judicial process. The 1995 Act 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 Act provides that the legal authority for transfers out will be by way of warrant issued by me as Minister and there is no need for application to court.
The motion before the House today cannot be considered in isolation from the 1995 Act which provides the legal basis for how we will operate the Convention and in those circumstances it might be useful to remind the House of the key provisions of the Act.
Section 3 provides that foreign nationals serving sentences here must be informed of the substances of the Act in order that they may make an informed choice as to whether to seek to avail of it. Sections 4 and 5 deal with applications and legal authority for transfers of persons outside the State: that is, the outward "traffic" under the Act.
Under section 4 applications for transfer must be made in writing to me as Minister by the sentenced person concerned. If, however, 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 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 be a national of the receiving or administering state. Where, however, the person is a national of another EU member state that 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. This does not, however, 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. In exceptional cases, however, 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 or her transfer will be from the point of view of both jurisdictions. Consequently, the Convention and the Act in section 4, (5) lay particular emphasis on the necessity for full and informed consent, since transferring someone without consent would lack fairness and be, ultimately, counterproductive.
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 or compatibility is necessary.
The sixth and final condition is that the administering state must also agree to the transfer. This condition confirms the convention's basic principle that a transfer requires the agreement of the two states concerned as well as that of the sentenced person.
Section 5 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 taking 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 custoday. When 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.
The sentence will cease to be enforceable, however, once the receiving or administering state considers enforcement to have been completed. 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 5 provides that the Minister may direct that the sentence be varied or cease altogether in order to give effect to the Convention.
The procedure for transfers into the State — that is, inward "traffic"— is set out in sections 6 and 7. The grounds for a transfer are to all intents and purposes the same as those for ongoing transfers which I have just outlined. The one significant difference is the role the High Court has to play in providing the legal authority for the transfer once it has been consented to. I will return to that in a moment.
Applications for inward transfer must be made in writing, either by the sentencing state or directly to me by the sentenced person. The legislation, as initiated, had provision only for the former method of application, but the House will recall that we thought it prudent to make an amendment to allow for applications to come direct to me from the prisoner as well as from the state where the prisoner is held. The ability of a person in another state to apply directly to me should help with any difficulty there may be of other countries perhaps, for example, delaying the transmission of applications. The legislation was amended to make it clear that the term "national" for the purposes of applications for transfer into the State should be interpreted in its widest possible sense and, so, it includes persons who, though not strictly speaking nationals, have close ties with this country.
Once I, as Minister, have satisfied myself that these requirements under the Convention 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 the bringing of the person into the State and the continued enforcement of the sentence here.
The role of the High Court is set out in section 7. 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 determined by the sentencing state. There may occasionally 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, for example, because 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 7, adapt the sentence to one prescribed by the law of this State for a similar offence. The adaptation procedure must take place within the very limited boundaries specified: the adapted sentence must, as far as practicable, correspond with that imposed by the sentencing state. Also, 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.
Section 7 also seeks to make explicit that the High Court, in issuing a warrant for continued enforcement, must take into account any remission accured in the sentencing state. In other words if, say, a person has already earned one-third remission in respect of the portion of a sentence served abroad, he or she will be credited with it and this will be reflected in the amount of sentence he or she will be required to serve when transfered here.
The issue of the warrant will mean, in practice, that the balance of the sentence to be served in this jurisdiction 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 will be served in precisely the same way as a sentence imposed here and will 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 8 provides for the legal custody of the person being transferred to 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. If the outcome of such a review is that the sentence is to be quashed, then the administering state must reciprocate and terminate enforcement as soon as it is notified of any such decision or measure.
Section 9 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 to give effect to the Convention where necessary.
Section 10 of the Act deals with two things. First, it contains what might be called an anti-discrimination clause. It provides that in considering applications for transfer there can be no discrimination between applicants without good reason. Second, subsection (2) deals with an obligation on me to furnish a statement specifying the grounds for any refusal of an application for transfer under the Act.
Section 11 requires that each year I must put before the Houses, by way of a separate annual report, an account of how all aspects of the legislation have operated and this will include information relating to each application made.
I should mention that the Act will not become operative until the process of ratification is completed — that is, under the terms of the Convention, on the first day of the month following the expiration of three months after the date of deposit of our instrument of ratification.
The process of ratification, which can proceed when we have passed the necessary motion today, will have very positive benefits for Irish nationals serving sentences in foreign prisons and particularly for their families. Equally, it will 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.
Given that this process is fulfilling our responsibilities as a member of the Council of Europe, the humanitarian nature of what is proposed and the part this measure will play in the consolidation of the peace process, I am confident in commending this motion that it will be approved by this House.