As it is pancake Tuesday, it seems appropriate that the committee discussed alcohol abuse. The delay was no problem and I thank the committee for the invitation to attend.
The Council framework decision on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving the deprivation of liberty for the purpose of their enforcement in the EU arises from a proposal by Austria, Sweden and Finland to revise the 1983 Council of Europe Convention on the Transfer of Sentenced Persons. The issue was first discussed at a meeting of the JHA Council on 27 January 2005. Ireland is a signatory to the 1983 convention which provides a mechanism by which individuals convicted of offences in foreign states may serve their sentences in their home states. In making provision for this facility, prisoners are afforded the opportunity to maintain cultural, domestic and linguistic ties with their country of origin with a view to enhancing the possibility of their rehabilitation. The convention provides that a transfer can only take place subject to the consent of the sentencing state, the prisoner and the state to which it is proposed to transfer the prisoner.
The primary purpose of this new framework decision is to build greater efficiency into the transfer process. The framework decision has been the subject of extensive negotiation at various levels within the European Union in which Ireland has played an active and constructive part. However, unlike the 1983 convention, which has international participation beyond the territory of the European Union, the scope of this framework decision will apply only to EU member states.
The principal changes from the 1983 Council of Europe convention involve the removal of the requirement for the consent of the prisoner and a modification of the requirement for the consent of the receiving state in certain circumstances for a transfer to proceed. Principally, where the prisoner in question is a national of the receiving state and is normally domiciled there, the consent of the prisoner and the receiving state will be taken as given and the necessity to formally obtain it will no longer be required. In place of this formality, will be a facility where, if necessary, the sentencing state can consult the other two parties to satisfy itself that the transfer might assist in the rehabilitation of the prisoner concerned. The framework decision will only apply to prisoners who have been convicted following its entry into force.
Ireland will have a period of three years in which to put in place the necessary legislative measures to facilitate implementation. Ireland has been operating the Council of Europe's 1983 convention since the 1990s, by means of the Transfer of Sentenced Persons Acts of 1995 and 1997. In that time, more than 200 prisoners have been facilitated with transfers to and from this State. The majority of transfers have occurred between Ireland and the United Kingdom.
On account of the number of Irish citizens living abroad, there were concerns that a large number of prisoners who have Irish nationality but who have established their domicile abroad might be suddenly returned to this jurisdiction directly as a result of the framework decision, particularly from the UK where there are currently in excess of 700 prisoners of Irish extraction. As well as having a potentially negative effect on individual prisoners, it could also have resulted in the number of prisoners in Irish prisons increasing by several hundred over a period of years. To a great extent the fact that the framework decision will not be applied retrospectively alleviates this problem. Nevertheless, I am pleased that Ireland and the United Kingdom have agreed to sign a memorandum of understanding on this framework decision which will govern its operation in so far as it applies to the two States. While the framework decision allows states to negotiate bilateral agreements, the terms of these agreements must be compatible with the draft framework decision for them to be valid. In compliance with this condition, the memorandum of understanding focuses on prisoner rehabilitation and the circumstances where a prisoner can be returned without his or her consent.
The United Kingdom and Ireland have agreed that in light of the close historical, community, social, political and linguistic ties between the two countries, the draft framework decision shall be interpreted as meaning that for the sole purpose of determining whether the consent of the sentenced person is required for forwarding of a judgment and certificate to either the United Kingdom or Ireland, a person will not be regarded as living in the state of his or her nationality if, immediately prior to the imposition of the sentence, he was lawfully and habitually resident in the other state.
In other cases, on account of the close historical, community, social, political and linguistic ties between the United Kingdom and Ireland, the draft framework decision shall be interpreted as meaning that the two countries will not, other than in exceptional circumstances, seek to forward a judgment where the sentenced person's consent is not required, as prescribed in Article 5(1)(a) of the framework decision.
Because of the significant similarities between the communities of the United Kingdom and Ireland arising from these ties it is anticipated that there will be significant benefits to be gained from the social rehabilitation of sentenced persons in the state in which they were sentenced. Accordingly, it is the opinion of the two countries that adopting this approach is an appropriate means of giving full effect to the principle of the draft framework decision.
The memorandum makes provision for all transfers between the two states to be conditional on the mutual consent of the two states and the consent of the prisoner in question, effectively maintaining the arrangement which currently applies under the 1983 convention. Deputies and Senators will be aware of Ireland's rapidly changing demographics and of the growing populations of foreign EU nationals in this State. While there is no doubt that the vast majority of these people contribute greatly to the prosperity and social fabric of modern Ireland, it has been the experience of other member states that the inward migration of citizens can have implications for prison populations and a consequential impact on financial resources. It is essential that Ireland takes steps to protect itself in the event of similar experiences here. In that regard, the committee may wish to note there are currently in the region of 200 convicted EU citizens in Irish prisons.
While this framework decision withdraws the provision of consent from the prisoner in the transfer process in certain circumstances, it continues to allow him or her a voice in it. The framework decision also provides the receiving state with a number of grounds under which it can refuse the transfer of a prisoner and the option that no prisoner can be transferred unless the offence of which he or she is convicted is also an offence in the receiving state. All prisoners who are transferred to this jurisdiction will be subject to legislation governing prisoners in this State, most notably the Prisons Act 2007 and the prison rules 2007 which reflect international best practice in the field of penitential management and the provisions of the European prison rules. It is the policy of this State to enforce the sentence handed down in the sentencing jurisdiction.
The framework decision consists of 22 separate articles. I do not propose to allude to each of them. I draw the attention of the committee to the main articles. Article 1 provides definitions of various terms in use in the document. Article 2 places an obligation on member states to identify the respective relevant authorities charged with dealing with this matter. Article 3 describes the scope of the framework decision. Article 3a sets out the criteria applicable for a sentencing state to transfer a prisoner to another state. Primarily this is the state in which the person normally resides, the state to which they would be deported on serving their sentence or any other state that consents to the transfer. It also provides for both states to consult on what is in the best interests of the prisoner where the possibility of their rehabilitation is concerned. Article 5 provides for the notification of prisoners and an opportunity for them to express their views on the transfer.
Article 7 provides states with the option to examine the offence for which a person has been convicted with a view to confirming that the act committed by that person is also an offence in its jurisdiction. Ireland will be availing of this option.
Article 9 provides grounds where a transfer may be refused by a state. Article 13 provides that the law of the receiving state will govern the enforcement of the sentence once the prisoner has been transferred. Articles 20 and 28 provide for members to replace the 1983 convention with the framework decision to negotiate bilateral agreements and for various transitional arrangements, including the option to apply the framework decision on a prospective basis.
I am satisfied that the provisions of the framework decision, in conjunction with the memorandum of understanding negotiated with the British Government, will afford the necessary protections to the State and prisoners alike and enhance the possibilities of rehabilitation for those who come under its scope. I, therefore, seek the committee's support for the adoption of the motion.
