Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021: Report and Final Stages
Dail Éireann — 2023-02-08
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James Browne (FF), Wexford

I move amendment No. 58:
In page 40, between lines 25 and 26, to insert the following:
"PART 4
CONDITIONAL RELEASE
Amendment of section 1 of Act of 1960
51. Section 1 of the Act of 1960 is amended by the insertion of the following definitions:
" 'Act of 1995' means the Transfer of Sentenced Persons Act 1995;
'Act of 2005' means the Transfer of Execution of Sentences Act 2005;
' Act of 2023 ' means the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023 ;
'conditional release', other than in the definition of 'release provision', has the meaning assigned to it by section 2A(4);
'foreign sentence' means a sentence imposed by a court or tribunal in a sentencing state, the enforcement of which is transferred to the State and thereafter continued in accordance with a committal order within the meaning of the Act of 1995, the Act of 2005 or Part 3 of the Act of 2023 , as the case may be;
'release provision', in relation to a foreign sentence, means a measure in respect of early or conditional release that the sentencing state has indicated applied to the foreign sentence prior to the transfer of its enforcement to the State;
'sentencing state', in relation to a foreign sentence, means a state, other than the State, in which the foreign sentence was imposed on a person;".
Amendment of section 2 of Act of 1960
52. Section 2 of the Act of 1960 is amended—
(a) in subsection (2)(g), by the insertion of "or section 2A" after "this section", and
(b) in subsection (11), by the insertion of "and sections 2A and 2B" after "this section".
Conditional release of persons from prisons and related matters
53. The Act of 1960 is amended by the insertion of the following sections after section 2:
"Conditional release of persons from prisons
2A. (1) Subject to subsection (2), this section applies to a person serving a foreign sentence in relation to which a release provision applies.
(2) This section shall not apply to a person serving a sentence of imprisonment for life.
(3) This section shall apply to a person regardless of whether the foreign sentence being served by the person was imposed prior to or after the coming into operation of section 51 of the Act of 2023 .
(4) Subject to subsection (6) and other than where subsection (5) applies, the Minister shall, for the purpose of avoiding the loss of benefit of the release provision referred to in subsection (1), direct that such person as is specified in the direction be released (in this Act referred to as 'conditional release') from prison for, subject to section 2B, such period, and subject to such conditions, as may be specified in the direction or rules under section 2D applying to that person.
(5) This subsection applies where the Minister is of the opinion that, for reasons connected with any one or more of the following matters, it would not be appropriate to give a direction under this section:
(a) the likelihood that the person would not have been released, in accordance with the release provision, from custody in the sentencing state (whether subject to conditions or otherwise) had the enforcement of the foreign sentence not transferred to the State;
(b) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates;
(c) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto;
(d) the period of the sentence of imprisonment served by the person;
(e) the effect of any order adapting the sentence under section 7C(3) or (5) of the Act of 1995, 10B(3) or (5) of the Act of 2005 or 40(3) or (5) of the Act of 2023 or partial recognition and enforcement (within the meaning of Part 3 of the Act of 2023 ) of the sentence;
(f) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison;
(g) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him or her relates;
(h) the risk of the person failing to return to prison upon the expiration of any period of conditional release;
(i) the conduct of the person while in custody, while previously the subject of a direction under section 2 or this section or while previously released on parole (within the meaning of the Parole Act 2019);
(j) any report of, or recommendation made by—
(i) the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned,
(ii) the Garda Síochána,
(iii) a probation officer,
(iv) the sentencing state, or
(v) any other person whom the Minister considers would be of assistance in enabling him or her to make a decision as to whether to give a direction under this section that relates to the person concerned;
(k) the risk of the person committing an offence during any period of conditional release;
(l) the risk of the person failing to comply with any conditions attaching to his or her conditional release;
(m) the likelihood that any period of conditional release might not accelerate the person's social rehabilitation and reintegration into society or improve his or her prospects of obtaining employment.
(6) The Minister shall not give a direction under this section in respect of a person—
(a) to whom section 24(1)(b) of the Parole Act 2019 applies, if that person has been released on parole pursuant to a parole order (within the meaning of the Parole Act 2019), or
(b) where the person has been charged with, or convicted of, an offence and is in custody pursuant to an order of a court remanding him or her to appear at a future sitting of a court.
(7) The Minister shall in a timely manner decide whether to give a direction under this section.
(8) Where the Minister refuses to give a direction under this section, he or she shall, unless a direction is subsequently given, review the refusal at intervals (which are not greater than 2 years).
(9) A direction under this section shall be given to the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned.
(10) The governor of, or person for the time being performing the functions of governor in relation to, the prison concerned to whom a direction under this section is given shall comply with that direction, and shall make and keep a record in writing of that direction.
(11) The giving of a direction under this section in respect of a person shall not confer an entitlement on him or her to such further direction.
(12) Nothing in this section shall affect—
(a) the power conferred by section 23 of the Criminal Justice Act 1951 to commute or to remit punishment,
(b) the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct,
(c) the power of the Minister to give a direction that a person be released for a temporary period under section 2 (including that section as applied by section 4 of the Prisons Act 1970),
(d) the operation of the Criminal Justice (Release of Prisoners) Act 1998,
(e) the operation of section 108 of the Criminal Justice Act 2006, and
(f) the operation of the Parole Act 2019 in respect of a person who is eligible for parole in accordance with section 24(1)(b) of that Act.
(13) In this section, 'probation officer' means a person appointed by the Minister to be a probation officer.
Period of conditional release
2B. (1) The Minister may, in specifying a period of conditional release in a direction under section 2A, specify such period as he or she considers appropriate having regard to—
(a) the purpose of avoiding the loss of the benefit of the release provision in relation to a foreign sentence being served by a person,
(b) the desirability of specifying a period that is not in excess of the maximum period of release under the release provision applied pro rata to the portion of the foreign sentence served in the sentencing state, and
(c) any reduction in the time to be served in prison that has already been applied in respect of the release provision upon the making of a committal order (within the meaning of the Act of 1995, the Act of 2005 or Part 3 of the Act of 2023 , as the case may be) in relation to the foreign sentence.
(2) The Minister may adjust, in accordance with such rules under section 2D as may apply, the period of conditional release to be specified in a direction under section 2A to avoid the accrual of both of the following benefits to the person in respect of whom the direction is to be made—
(a) the calculation, after the transfer to the State of the enforcement of the foreign sentence, of the period of conditional release on the basis of the pro rata application of the release provision in relation to the foreign sentence to the portion of that sentence served in the sentencing state, and
(b) the accrual to him or her while on conditional release of the benefit of the application of the rules and practice whereby prisoners generally may earn remission of sentence by industry and good conduct.
Variation of conditional release
2C. (1) The Minister may at any time vary a condition specified in a direction under section 2A whether by the alteration, addition or revocation of the condition.
(2) A variation under subsection (1) by the Minister of a condition specified in a direction under section 2A shall—
(a) be in writing,
(b) specify the date from which the variation shall take effect,
(c) include reasons for the decisions, and
(d) not include, other than to the extent the Minister considers it necessary, any information that identifies, or could identify, a relevant victim or his or her place of residence.
(3) Where the Minister varies a condition specified in a direction under section 2A, the variation shall—
(a) take effect from the date specified, and
(b) have effect from that date as a condition of the direction.
Rules relating to conditional release
2D. (1) The Minister may make rules for the purpose of enabling sections 2A, 2B and 2C to have full effect and, without prejudice to the generality of the foregoing, such rules may—
(a) specify conditions to which all persons released pursuant to a direction under section 2A shall be subject or conditions to which all persons belonging to such classes of persons as are specified in the rules shall be subject,
(b) for the purposes of section 2B(1)(b), specify the method to be employed for—
(i) calculating a maximum period of release under a release provision, and
(ii) applying the period referred to in subparagraph (i) pro rata to a portion of a foreign sentence served in the sentencing state,
(c) for the purposes of section 2B(2), specify the method to be employed for calculating the adjustment (if any) of a period of conditional release for the purpose specified in that provision,
(d) for the purpose of section 2C, specify the procedure for the variation of a condition specified in a direction under section 2A,
and
(e) contain such incidental, supplementary and consequential provisions as the Minister considers to be necessary or expedient for the purpose of enabling those sections to have full force and effect.
(2) Every rule under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the rule is passed by either such House within the next 21 days on which that House has sat after the rule is laid before it, the rule shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.".
Amendment of section 4 of Act of 1960
54. Section 4 of the Act of 1960 is amended—
(a) in subsection (1), by the substitution of "section 2, 2A or 3" for "section 2 or section 3",
(b) by the insertion of the following subsection after subsection (1):
"(1A) Where the Minister, under section 2C(1), varies a condition specified in a direction under section 2A, he or she shall, as soon as practicable after the variation, provide a copy of the variation to the person specified in the direction.",
and
(c) in subsection (2), by the insertion of "or conditionally released under section 2A" after "section 3".
Amendment of section 5 of Act of 1960
55. Section 5 of the Act of 1960 is amended, by the insertion of "or conditionally released under section 2A" after "section 3".
Amendment of section 6 of Act of 1960
56. Section 6 of the Act of 1960 is amended—
(a) in subsection (1)—
(i) by the insertion of "or conditionally released under section 2A" after "section 3", and
(ii) in paragraph (a), by the insertion of "or conditionally released, as the case may be," after "temporarily released",
and
(b) in subsection (3)—
(i) by the substitution of "section 2, 2A or 3" for "section 2 or section 3", and
(ii) by the insertion of "or conditionally released, as the case may be," after "temporarily released".".
Amendment No. 58 to the Criminal Justice Act 1960 provides the legal means to effect conditional release. While modelled on the existing power to grant temporary release, it has several distinct features. The key provision is section 2A. This section applies to a person serving a foreign sentence in the State under either the convention or the framework decision. It applies only to determinate sentences to which early and conditional release provisions apply. Life sentences are dealt with in the context of the Parole Act 2019. Section 2A(4) provides that the Minister shall grant release for the purpose of avoiding a loss of benefit unless it would not be appropriate to do so. In other words, there is a presumption towards release. This presumption is subject to broad discretion to refuse to release. The factors to be considered are set out in subsection (5) and include the likelihood that a person would have been granted release in the sentencing state had the transfer not occurred. This is, of course, of particular relevance where the release would not have been automatic in the sentencing state. Other factors include any risk that a person presents to public safety, including any threat to the victim, the nature and gravity of the offence, any recommendations that may have been made by the court, the conduct of the person while in prison, and so on. These are similar to the factors that may be considered in respect of temporary release or, indeed, parole.
There is a general power to set conditions. These conditions will include being of good behaviour and may be tailored to the specific circumstances of the case. As provided for in section 2B, a person will generally get the benefit of early or conditional release provisions only on pro rata basis reflecting the period served in the sentencing state as Irish remission supersedes it for the balance served in Ireland. This is not expressed as a hard limit as exceptional and unforeseen circumstances may arise with the variety of possible sentencing structures. However, the intention is that, in the vast majority of cases, the pro rata arrangement will be used. Depending on the circumstances, a release may be granted in one block or for shorter periods with a renewal to be considered when the period expires. Where the early-release provisions of the other state have already been taken into account, as where the other state operates a remission-based system and has granted a reduction at the time of transfer, a further benefit will not accrue. Irish remission, including enhanced remission rules, shall apply to the full balance of the sentence served in Ireland, but the period of the conditional release is adjusted to avoid a double benefit arising from the calculation of remission on the period of conditional release. Take the example of a person sentenced to ten years' imprisonment who would be entitled to a conditional release at the halfway point in the sentencing state and who transfers after four years. Had they not transferred they would have been entitled to a release after five years. Remission applies to the six years remaining on the sentence at 25%. This would be one year and six months. Conditional release of four years would arise based on the four years served, but this is reduced by 25% to take into the account that remission applies to that period. Accordingly, the person would be eligible for a maximum of three years' conditional release. If granted, they would serve five years and six months in custody - three years on conditional release with one year and six months' remission.
The Minister is required to assess whether to grant release in a timely manner. Where a release may be granted but is refused, this must be reviewed at intervals of no greater than two years.
Section 2C provides for the variation of conditions. This is important in the context of conditional release compared to temporary release as it is likely that periods involved would be longer, while section 2D provides for rules to be made by the Minister to enhance the new system to have full effect. Conditions may include general conditions applicable to the persons on release, procedures involved in the variation of conditions and calculation methodologies. Section 6 provides that a person in breach of their conditional release is deemed unlawfully at large and may be arrested and returned to custody.

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Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted.

Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/dail/2023-02-08/debate/main
Retrieved: 2026-08-14T04:51:33+00:00
Sitting date: 2023-02-08