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. 60:
In page 40, between lines 25 and 26, to insert the following:
“PART 6
AMENDMENT OF ACT OF 2005
Amendment of section 1 of Act of 2005
64. Section 1(1) of the Act of 2005 is amended—
(a) by the substitution of the following definition for the definition of “sentence”:
“ ‘sentence’ means a punishment or measure involving deprivation of liberty ordered by a court or tribunal for a limited or unlimited period of time on account of a criminal offence and includes a punishment or measure that includes a limited or unlimited period of time that is served otherwise than in custody;”,
and
(b) by the insertion of the following definitions:
“ ‘Act of 2006’ means the Criminal Law (Insanity) Act 2006;
‘children detention school’ has the same meaning as it has in section 3(1) of the Children Act 2001;
‘committal order’ has the meaning assigned to it by section 10(1);
‘deductible period’, in relation to a sentenced person, means—
(a) the period spent by the person in custody in the State on foot of a warrant issued under section 8 or 9 awaiting the making of a committal order, and
(b) the period (if any) of the sentence indicated by a sentencing country to be deducted from the total length of the sentence—
(i) in respect of an amnesty, pardon, clemency or other such decision granted by the sentencing country in relation to the sentence, and
(ii) in respect of any other reduction (including a period of remission of sentence) in relation to the part of the sentence which has been served by the person in that country;
‘designated centre’ has the same meaning as it has in section 1 of the Act of 2006;
‘place of detention’ means—
(a) a prison,
(b) a designated centre, or
(c) a children detention school;
‘prison’ means a place of custody (other than a Garda Síochána station) administered by or on behalf of the Minister and includes a place—
(a) provided under section 2 of the Prisons Act 1970, and
(b) specified under section 3 of the Prisons Act 1972;”.
Amendment of section 7 of Act of 2005
65. Section 7 of the Act of 2005 is amended by the insertion of the following subsection after subsection (2):
“(2A) For the purposes of subsection (2)(d) and section 8(2)(b)(iv), where the sentence imposed in a sentencing country is in relation to more than one offence, the requirement set out in those provisions shall be deemed to be satisfied where any one or more of the offences for which the sentence was imposed corresponds to an offence under the law of the State.”.
Amendment of section 8 of Act of 2005
66. Section 8 of the Act of 2005 is amended—
(a) in subsection (1), by the insertion of “the continued enforcement of the sentence (in its legal nature and duration) and” after “High Court for”,
(b) in subsection (2), by the insertion of “for the purpose of the enforcement of the sentence” after “concerned”, and
(c) by the insertion of the following subsection after subsection (2):
“(2A) Where the High Court issues a warrant under subsection (2), the Court shall take all such measures as are necessary to enforce the sentence and, in particular, may make an order under section 10B(3) or (5) or both adapting the sentence.”.
Identification procedures for purpose under Act
67. The Act of 2005 is amended by the insertion of the following section after section 9:
“9A. (1) Where a member of the Garda Síochána arrests a person under any power conferred by this Act, the member of the Garda Síochána may, in order to assist in verifying or ascertaining the identity of the person for any purpose under this Act—
(a) take, or cause to be taken, his or her fingerprint,
(b) take, or cause to be taken, his or her palm print, and
(c) photograph him or her or cause him or her to be photographed.
(2) Where a fingerprint, palm print or photograph taken pursuant to subsection (1) is lost or damaged, or is otherwise unsuitable for use for the purpose referred to in that subsection, it may be taken on a second or any further occasion.
(3) The powers conferred by subsection (1) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of inspector.
(4) A member of the Garda Síochána may, where a person fails or refuses to allow his or her fingerprint, palm print or photograph to be taken pursuant to subsection (1), use such force as he or she reasonably considers necessary to take the fingerprint, palm print or photograph or to cause the photograph to be taken.
(5) The powers conferred by subsection (4) shall not be exercised except where authorised by a member of the Garda Síochána not below the rank of superintendent.
(6) An authorisation pursuant to subsection (5) may be given orally or in writing and if given orally shall be confirmed in writing as soon as practicable.
(7) Where a member of the Garda Síochána intends to exercise a power conferred by subsection (4), he or she shall inform the person who fails or refuses to allow his or her fingerprint, palm print or photograph to be taken pursuant to subsection (1)—
(a) of that intention, and
(b) that an authorisation to do so has been given pursuant to subsection (5).
(8) A fingerprint, palm print or photograph taken pursuant to subsection (4) shall be taken in the presence of a member of the Garda Síochána not below the rank of inspector.
(9) The taking of a fingerprint, palm print or photograph pursuant to subsection (4) shall be recorded by electronic or similar means.
(10) A fingerprint, palm print or photograph of a person taken in pursuance of a power conferred by this section and every copy and record thereof shall be destroyed on the later of—
(a) the expiration of the period of 12 months from the date of the taking of the fingerprint, palm print or photograph, as the case may be, or
(b) the expiry of the sentence of imprisonment imposed on the person to which a request under section 6 or 7 relates.
(11) A person who obstructs a member of the Garda Síochána in exercise of the powers under this section shall be guilty of an offence and shall, on summary conviction, be liable to a class A fine or to imprisonment for a term not exceeding 12 months or both.
(12) Where a fingerprint, palm print or photograph of a person in respect of whom a request under section 7 has been received is transmitted by or on behalf of a sentencing country, such fingerprint, palm print or photograph shall, unless the contrary is proved, be received in evidence without further proof.”.
Amendment of section 10 of Act of 2005
68. Section 10 of the Act of 2005 is amended—
(a) in subsection (1)—
(i) by the substitution of “order (in this Act referred to as a ‘committal order’) for the purpose of enforcement of the sentence, committing the person to a place of detention” for “order committing the person to a prison”, and
(ii) by the substitution of “a period, subject to subsection (3), equal” for “a period equal”,
(b) in subsection (2), by the substitution of “a committal order” for “an order under subsection (1)”,
(c) by the substitution of the following subsection for subsection (3):
“(3) In determining the period for which a sentenced person may be committed to a place of detention in a committal order—
(a) the High Court shall not have regard to the provisions of law of the sentencing country under which the sentenced person is entitled to early or conditional release, and
(b) where by operation of law of the sentencing country the sentenced person would be entitled, other than in accordance with paragraph (a), to be released from custody, whether under licence or otherwise, at a specified time having served a specified portion of the sentence—
(i) the High Court shall treat such release as a measure relating to the administration of the sentence, and
(ii) the sentence shall be treated as a sentence to be spent in custody or other detention for the full period.”,
(d) by the substitution of the following subsection for subsection (4):
“(4) Where a committal order is made in respect of a sentenced person who has been sentenced to a term of imprisonment for life in a sentencing country, the order shall specify that the person is to be committed for imprisonment for life irrespective of whether his or her eligibility for early or conditional release (including parole) in the sentencing country was—
(a) restricted for the whole term of the sentence, or
(b) conditional on his or her having served a specified term of imprisonment as a result of—
(i) a decision or order by the court or tribunal that imposed the sentence,
(ii) the operation of law of the sentencing country, or
(iii) a decision of a body in the sentencing country, other than a body referred to in subparagraph (i), on whom a power to make such a decision has been conferred by law.”,
(e) by the substitution of the following subsection for subsection (5):
“(5) Notwithstanding subsection (1), the period for which a sentenced person may be committed to a place of detention in a committal order may exceed the period for which he or she could lawfully have been detained or otherwise had his or her personal liberty restricted in custody in the sentencing country.”,
(f) in subsection (6)(a)—
(i) by the substitution of “committal order” for “an order under subsection (1)”,
and
(ii) by the substitution of “the place of detention” for “prison”,
and
(g) by the repeal of subsection (7).
Effect of committal order and related matters
69. The Act of 2005 is amended by the insertion of the following sections after section 10:
“Effect of committal order
10A. (1) Subject to subsections (3) and (4) and section 10B, the effect of a committal order shall be to authorise the continued enforcement by the State of a sentence (in its legal nature and duration) imposed in a sentencing country and such an order shall—
(a) where a sentenced person is to be committed to a prison, have the same force and effect as an order imposing a sentence of imprisonment following conviction by the court,
(b) where a sentenced person is to be committed to a designated centre, have the same force and effect as an order by the court under section 5(2) of the Act of 2006 committing a person to such a centre, and
(c) where a sentenced person is to be committed to a children detention school, have the same force and effect as an order imposing a sentence of detention in a children detention school following conviction by the court.
(2) Without prejudice to the generality of subsection (1), the following shall apply in relation to a sentence which is to be enforced in the State—
(a) section 17(3) of the Criminal Justice Administration Act 1914 in respect of a sentenced person committed to a prison,
(b) the power to commute or remit a punishment under section 23 of the Criminal Justice Act 1951,
(c) the power of the Minister to give a direction that a sentenced person be released from prison for a temporary period under section 2 of the Criminal Justice Act 1960 or be released for such period as may be specified by the Minister under section 2A of that Act,
(d) the power of the Parole Board to make a parole order under section 27 of the Parole Act 2019 in respect of a sentenced person,
and
(e) in so far as the period served by a sentenced person in a place of detention on foot of a warrant issued under section 8 or 9 and a committal order is concerned, the rules or practice whereby sentenced persons generally may earn remission of sentences by industry or good conduct.
(3) A person in respect of whom a warrant is issued under section 8 or 9 or a committal order is made shall not be entitled to bring any appeal in the State against the conviction or the sentence imposed in the sentencing country.
(4) The Criminal Procedure Act 1993 shall not apply to a person in respect of whom a warrant is issued under section 8 or 9 or a committal order is made in so far as the conviction or sentence imposed in the sentencing country is concerned.
Adaptation
10B. (1) The High Court may, on the application by or on behalf of the Minister (whether as part of an application under section 8(1) or at any other time) or of its own motion, make an order under subsection (3) or (5) or both adapting a sentence.
(2) An application under subsection (1) shall be made on notice to the sentenced person.
(3) Where the sentence imposed in the sentencing country is by its legal nature incompatible with the law of the State, the High Court may make an order adapting the legal nature of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.
(4) The legal nature of a sentence adapted under subsection (3) shall, as far as practicable, correspond to the legal nature of the sentence concerned imposed in the sentencing country and shall not, in any event, either—
(a) aggravate it, or
(b) exceed the maximum penalty prescribed by the law of the State for a similar offence.
(5) Where the sentence imposed in the sentencing country is by its duration incompatible with the law of the State, the High Court may make an order adapting the duration of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.
(6) The duration of a sentence adapted under subsection (5) shall, as far as practicable, correspond to the duration of the sentence imposed in the sentencing state and shall not, in any event, either—
(a) aggravate it, or
(b) exceed the maximum penalty prescribed by the law of the State fora similar offence.
(7) The enforcement of a sentence that is, by its legal nature or duration, incompatible with the law of the State shall not be deemed to be unlawful by reason only of the sentence not having been adapted by way of an order under subsection (3) or (5) or both.
(8) A sentenced person may continue to be detained or otherwise restricted in his or her personal liberty pursuant to a warrant issued under section 8 or 9 or a committal order notwithstanding that an application is made under subsection (1) for an order under subsection (3) or (5) or both adapting his or her sentence.
(9) A sentence shall not be taken by its legal nature to be incompatiblewith the law of the State by reason only of—
(a) the duration of the sentence imposed in a sentencing country,
(b) any provisions of law of the sentencing country in respect of early or conditional release which applied to the sentence prior to the transfer of its enforcement to the State,
(c) any provisions of law of the sentencing country, other than the provisions referred to in paragraph (b), under which the sentenced person would be entitled to be released from custody, whether under licence or otherwise, at a specified time having served a portion of the sentence,
(d) in the case of a sentence of imprisonment for life—
(i) any restriction for the whole term of the sentence regarding the eligibility of the sentenced person to early or conditional release (including parole), or
(ii) any condition that means that the eligibility of the sentenced person to early or conditional release (including parole) was conditional on his or her having served a specified term of imprisonment as a result of—
(I) a decision or order by the court or tribunal that imposed the sentence,
(II) the operation of law of the sentencing country, or
(III) a decision of a body in the sentencing country, other than a body referred to in clause (I), on whom a power to make such a decision has been conferred by law,
or
(e) its imposition in the sentencing country in respect of more than one offence.
(10) In this section, ‘incompatible with the law of the State’ means—
(a) in so far as it applies to the legal nature of a sentence imposed in a sentencing country, a sentence that, subject to subsection (9), consists of a punishment or measure that is different in nature from the punishment or measure which could be imposed on the sentenced person if he or she were—
(i) convicted in the State of an offence corresponding to the offenceof which he or she was convicted in the sentencing country, or
(ii) the subject of a special verdict under section 5 of the Act of 2006,
and
(b) in so far as it applies to the duration of a sentence imposed in a sentencing country, a sentence that is greater than the maximum term of imprisonment or other detention to which the sentenced person would be liable if he or she were convicted in the State of an offence corresponding to the offence of which he or she was convicted in the sentencing country.
Transfer to State of enforcement of sentence
10C. (1) Subject to subsection (2), the enforcement of a sentence shall, where the sentenced person is in the State and he or she is a person to whom section 10(1) applies, be governed by the law of the State, from the date of the making of an order under that section.
(2) Where a sentenced person escapes from custody or other detention and has not been retaken, the enforcement of the sentence shall revert to the sentencing country upon receipt by the sentencing country of notification by the Minister of the escape.
Termination of enforcement
10D. (1) The enforcement of a sentence in the State shall cease where the Minister is notified by the sentencing country of any decision or measure, other than a decision or measure in respect of remission, as a result of which the sentence ceased to be enforceable in that country immediately or from such date as is contained in the notification.
(2) The Minister shall, on receipt of a notification under subsection (1), immediately inform the following persons of the decision or measure referred to in the notification:
(a) where the sentenced person is in a prison, the governor of the prison;
(b) where the sentenced person is in a designated centre, the clinical director of the designated centre;
(c) where the sentenced person is in a children detention school, the Director of the children detention school.
(3) Subject to subsection (4), a sentenced person to whom a notification referred to in subsection (1) relates shall, upon the governor of the prison, the clinical director of the designated centre or the Director of the children detention school (as the case may be) being informed under subsection (2) that the notification has been received, be released from custody or other detention forthwith or on such later date as may be specified in the notification.
(4) Subsection (3) shall not apply where—
(a) (i) the person has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State,
(ii) on the date on which he or she would, but for this paragraph, be entitled to be released under subsection (3), all or part of the term of imprisonment remains unexpired, and
(iii) the person is required to serve all or part of the remainder of that term of imprisonment,
or
(b) (i) the person has been charged with, or convicted of, an offence in the State, and
(ii) on the date on which he or she would, but for this paragraph, be entitled to be released under subsection (3), he or she is required to be in custody, by virtue of having been remanded in custody pending his or her being tried, or the imposition of sentence, as the case may be, in respect of that offence.
(5) In this section, ‘governor’, in respect of a prison, means—
(a) the governor of the prison, or
(b) a person who is for the time being performing the functions of governor of the prison.
Revocation and variation of warrants and orders
10E. (1) The Minister may at any time (including as part of an application under section 10B) apply to the High Court for an order revoking, or varying the terms of a warrant under section 8 or 9 or a committal order.
(2) A sentenced person may in writing request the Minister to bring an application under subsection (1) and the Minister shall bring the application unless, having regard to all the circumstances, he or she is satisfied that it is not necessary.
(3) The High Court may, upon an application under subsection (1), make an order revoking or varying the terms of a warrant or order referred to in that subsection if the court is satisfied that the revocation or variation is necessary for the purposes of this Act and the Convention on the Transfer of Sentenced Persons done at Strasbourg on 18 December 1997.”.
Repeal of section 11 of Act of 2005
70. Section 11 of the Act of 2005 is repealed.
Amendment of section 12 of Act of 2005
71. Section 12 of the Act of 2005 is amended by the substitution of “a committal order” for
“an order under subsection (1) of section 10”.”.

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Sitting date: 2023-02-08