Friday, 7 July 1995
Seanad Éireann Debate
Minister for Justice (Mrs. Owen): This is my first opportunity since the  death of the Cathaoirleach to pay my respects in this House to the late Seán Fallon. As was said in all the tributes, he was a superb representative and a splendid Cathaoirleach. I am happy to join with the other tributes paid in this House.
Since its publication in April this Bill has received a positive welcome both outside and inside the Oireachtas. A number of amendments were made in the other House and I think it is fair to say that the Bill in the form now before this House represents a comprehensive and effective measure which I am sure we are all anxious to see passed into law as quickly as possible.
The main purpose of the 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 which supplements the convention in terms of its operation among member states.
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. Certainly it has that positive and worthwhile role and I know that will be much welcomed by the House. However, I believe Senators will equally welcome that the convention makes no distinction 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. It might be helpful to highlight two key aspects. First, the transfer procedure is entirely 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 Canada. Thus far 26 of the 34 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.
A key consideration in bringing forward this measure is its likely implications for prison accommodation. While concerns clearly arise in this regard I believe they are not insurmountable and what will be at issue in practice is drawing the right balance between facilitating transfers on humanitarian grounds as much as possible and at the same time ensuring that undue pressure is not placed on our prison system.
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 mentioned. 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 what the legal consequences of the transfer might be. In addition to that three way consent, the convention lays down other criteria which must be satisfied before a transfer can take place. I will deal with these in some detail in my comments on individual sections of the Bill.
As regards transfers of prisoners into this country, the Bill proposes to use the procedure of continued enforcement set out in the convention. This 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. 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 on  application by me as Minister once I have consented to the transfer.
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.
Section 1 of the Bill deals with interpretation and follows closely the definitions in the convention. Section 2 is a new section inserted during the passage of the Bill through the other House. The effect of this section is to make it possible for a transfer to take place between this country and a state which is not party to the convention.
There may be states which, for one reason of another, choose not to commit themselves to entering into a multilateral arrangement, but which would nevertheless, be willing to deal with Ireland on a bilateral basis. Section 2 gives such bilateral arrangements binding legal effect.
Section 3 is another new section added to the Bill in the other House. It provides that foreign nationals serving sentences here must be informed of the substance of the Bill 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 out of the State. Under section 4 applications for transfers must be made in writing to me as Minister by or, in certain circumstances, on behalf of the sentenced person concerned.
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. 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. Essentially, all available remedies must be exhausted. 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 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.
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 the law of this jurisdiction and that of the sentencing state. However, some element of comparability or compatibility is necessary. The sixth and final condition is that the administering state must also agree to the transfer.
Section 5 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. 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.
The sentence will cease to be enforceable, however, once the receiving or administering state considers enforcement to have been completed. Accordingly, section 5 (7) 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 is set out in sections 6 and 7. The grounds for a transfer are, to all intents and purposes, the same as those for outgoing 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.
Applications for inward transfer must be made either by the sentencing state or directly to me by the sentenced person. The Bill, as initiated, had provision only for the former method of application, that is, by the sentencing state, but I thought it prudent to bring forward an amendment in the other House 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 delaying the transmissions of applications.
The Bill has been amended to make it clear that the term “national” for the purposes of application for transfer into the State should be interpreted in its widest possible sense. It includes persons who, although not strictly speaking nationals have close ties with this country. Once I, as Minister, have satisfied myself that these transfer 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 as 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. In such cases the High Court may, under section 7 (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 very limited boundaries specified in subsection (6). Essentially, 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 the length of time still to be served.
An addition to section 7 (4), which was made in the other House, seeks to make explicit in the Bill that the High Court, in issuing a warrant for continued enforcement, must take into account any remission accrued in the sentencing state. 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, it will be served in precisely the same way as a sentence imposed here and subject to all the normal rules governing administration of sentence generally, including remission and temporary release.
Section 8 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.
Section 9 of the Bill 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 in order to give effect to the convention where necessary.
Section 10 of the Bill is yet another new provision agreed in the other House. It deals with two things. First, it inserts what might be called an “anti-discrimination” clause into the Bill, which 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 Bill.
Section 11 is an addition to the Bill which I instigated in the other House. Its effect will be that each year I will put before the Oireachtas an annual report in relation to the operation of all aspects of the Bill. Section 12 of the Bill proposes the standard form of expenses provision and section 13 is the short title.
These are the Bills's main provisions. I am sure the House will accept that this Bill will have a positive benefit for Irish nationals who are serving sentences in foreign prisons, 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 the humanitarian nature of what is being proposed and the part which this measure will play in the consolidation of the peace process, I am confident, in commending this Bill, that it will be welcomed in this House. The measure before the House is one to which the Government and myself have given priority. It is in that context that I would like to thank the Seanad for its co-operation in rescheduling the debate on the Bill and ensuring its enactment as quickly as possible.
This process has been in motion since 1983. The fact that we are only now discussing it clearly indicates that it is overdue in the light of the ceasefire in Northern Ireland over the last ten months. It is important we acknowledge the ceasefire in this way and facilitate the transfer of our people imprisoned in the United Kingdom and United Kingdom people imprisoned in this country to the country of their birth.
Apart from the convention ratification, this legislation is also important from a humanitarian point of view. I recently read Deputy Ó Cuív's report on his visit to English prisons. I was astounded to read the conditions applying there in terms of the restrictions put on prisoners' families and the costs incurred in visiting their loved ones in England.
Nothing has changed. One only has to look at the release of Private Clegg, who was transferred to England soon after his conviction. Prisoners convicted for attempted murder in maximum security prisons in England are not allowed access to their families. It costs around £300 for one parent to visit their son in an English prison. If they were to bring any more than one person, the cost would immediately increase to around £1,000. Therefore, this legislation is necessary from a humanitarian point of view. It is also necessary to speed up the process to give these prisoners the chance to move back near their loved ones. I welcome the fact that we are now able to do something in that area.
The Minister talked about the implementation of this legislation when it comes to issuing and revoking warrants. However, when we look at the number of prisoners already in our prisons, we must ask ourselves how will we be able to find room for more. Will prisoners be let out on bail to make room for those who may wish to come back? We have a serious problem with the high number of prisoners in our prisons. The Minister did not say how many Irish prisoners in British prisons wish to come back. It is  important to have this information before we move any further on this matter. We should know the number of prisoners who wish to avail of this facility and how many places would be available for them. One month ago, work was stopped on the building of a prison at Castlerea. That prison would have been welcome in light of this legislation.
Many prisoners who may want to come back might wish to further their education. What facilities will be provided in our prisons? I did not hear the Minister refer to that in her contribution and I would like her to give us more information on how they would be integrated into our prison system. I am very concerned about education for rehabilitation of prisoners.
I am also worried about the increased power this legislation gives to the Minister. This is framework legislation designed to facilitate the transfer of prisoners from the country of their incarceration to the country of their birth. While I accept that, the mechanism to implement it gives the Minister the power to decide whether a particular prisoner will be allowed to be transferred. If an application is turned down, will the families have recourse to the Minister to find out why that happened? We do not have enough information in this regard.
The public welcomes this legislation because it allows people to move from one country to another to serve their prison sentences. The Bill deals with different types of prison sentences but the information is vague. I am worried about how the Minister will implement the decision to transfer a prisoner from the United Kingdom to this country and if there will be remission for the prisoner moving here.
I welcome the thrust of the Bill. Perhaps the Minister could clarify what recourse a family or prisoner has if their application is turned down. Is it possible to review the decision? The Minister did not give us such information in her speech. This Bill is long overdue.
 The ceasefire has been in operation for ten months. We should now show goodwill towards our prisoners in the United Kingdom and open up our borders between Ireland, Northern Ireland and the United Kingdom. Goodwill will exist between the two countries if we remove barriers and obstacles. Nationals and non-nationals in this country welcome this legislation which will allow the transfer of prisoners from this country to the UK and from the UK to here.
We must provide prison spaces for these prisoners. I am worried about this because we do not have enough space for the considerable number of prisoners we have in this country. Such aspects must be considered before this Bill is implemented because we do not want the process delayed by lack of prison spaces. I would like to discuss this area because the legislation is no good unless it is properly implemented.
Mr. Enright: I join with the Leader in welcoming the Minister to the House to discuss this important Bill which ratifies the Council of Europe Convention on the Transfer of Sentenced Persons. This is the only country in the European Union which has not done so. Since the convention will not be ratified until the Bill passes the House, it is important to ratify it as soon as possible.
Concern has been expressed about the number of people in prisons in Ireland. I understand there are approximately 180 foreign prisoners here and approximately 600 Irish people in prisons overseas. The Irish Commission for Prisoners Overseas issued a report which stated that approximately 40 prisoners  would seek a transfer immediately and that this would level off over a period of time. It is difficult to give definite figures. A number of Irish people in prison in the United Kingdom are married and their families live there. Although they will now be able to serve their prison sentences here, they may decide to stay in Britain because of their families. This matter will probably resolve itself over a period of time.
We all understand the problems of foreigners in prison in Ireland because they have different cultures and languages and there are difficulties as regards relatives visiting them. There are approximately 600 Irish people in prison overseas. Irish prisoners in Britain are deprived of their liberty and this has a dramatic effect on them and they suffer further emotional and psychiatric problems if their relatives and friends cannot visit them in prison. I welcome the fact that the Bill addresses this problem.
I am glad that the transfer procedures will be on a voluntary basis because difficulties could arise if foreign Governments applied to have people transferred back who did not want to go. This is a fair procedure.
Where the Minister consents to a request for a transfer, application shall be made to the High Court rather than the Circuit Court or the District Court. I presume she is doing this for constitutional reasons. As regards the costs involved, I am not sure funding will be provided for advice or applications to the court. Perhaps the Minister could clarify this. The procedures, as envisaged in this Bill, are reasonably straightforward and should not cause too many difficulties.
I accept the necessity for a final court decision. It would be useless to transfer people backwards and forwards before a final court decision is made. The judicial review is welcome because circumstances  or laws may change and a person could then be granted liberty for a judicial review.
The Bill contains a provision in relation to prisoners who have six months of their sentence still to serve. While people might say that is not a particularly long time, it could be a long time for some people for a variety of reasons. For example, the wife of a man in prison in another jurisdiction may be ill, or the prisoner's health might be poor or their children may be growing up. They will be able to apply for a transfer and there will be discretion in that regard. This is a welcome move.
The Bill is welcome. Most Irish prisons could do with improvement and modernisation but this applies to most prisons around the world. This is a humanitarian Bill, the purpose of which is to help people who are in prison and to ensure they have access to visitors. I congratulate the Minister and I wish the Bill a speedy passage through the House.
Dr. Henry: I welcome the Bill and I compliment the Minister for bringing it forward so rapidly. I am sure she would be glad if I extended my thanks to the former Minister for Justice who also put much work into this area.
The Minister was wise to accept some of the amendments put forward in the other House, particularly the one regarding sentenced persons from abroad being told of their rights. This is often a serious problem when such people have difficulty with language. Another amendment dealt with the extension of the definition of a national, while a further amendment made transparency and openness as positive as possible so that people know why their request for a transfer is not granted.
I regret the Minister did not adopt more elements of the Dutch system rather than the British system in implementing the convention. In the Dutch system, I understand the sentences are considered more in line with those which would be imposed within  the Netherlands rather than the country in which the crime was committed. I hope this will not lead to trouble in our prisons when people are transferred from other countries with perhaps grossly different sentences from those who were sentenced by Irish courts. I am sure the Minister had good reasons for doing this and perhaps she could explain them in her reply.
The Bill is welcome on humanitarian grounds because in addition to the suffering of prisoners, the families of prisoners suffer for crimes which they did not commit. If one only looks at prison in terms of incarceration, it does not matter where people are imprisoned. However, if one hopes for rehabilitation, virtually all prison reports on recidivism state it is essential that prisoners be as close to their families as possible while they are serving their sentences. Contact with their families and vice versa is essential to try to rehabilitate prisoners back into society. Given the high rate of recidivism in Ireland, this area should be urgently addressed.
The debate on this Bill to date has focused on prisons. However, the Bill deals with sentenced persons and I am sure the Minister intends it to deal also with persons in other countries who have not been sentenced to prison. I am thinking in particular of mentally disordered offenders. The Green Paper on Mental Health, which was published in June 1992, contained an entire chapter on mentally disordered offenders. It pointed out that the removal from prison of people who were mentally ill was a major goal in the last century. We have not yet managed to achieve this goal. I wish to point out that, in most European countries, those found to be mentally ill are not sentenced to prison but dealt with in hospitals.
A judge in Ireland cannot transfer a psychiatrically ill person directly to a psychiatric hospital. As the Minister is aware, they must be committed to prison first. There is a serious discrepancy between the treatment they might receive in this country and in other  countries and this should be pointed out not only to the prisoner but also to those who are applying on their behalf for their return home. They should be made aware that their treatment in this country may be grossly inferior to the treatment, if they are psychiatrically ill, they received abroad.
My distinguished colleague Dr. Smith from Dundrum has pointed out that approximately 5 per cent of people in our prisons have serious psychiatric illness, such as schizophrenia and psychoses. If we include the number of people in our prisons who are suffering from depression, the instance of psychiatric illness could perhaps be as high as 30 per cent. It is impossible to find out the number of prisoners who are receiving psychotropic drugs.
The previous Minister for Justice was asked this question but she refused to give the figures on the basis that it would infringe the medical confidentiality of prisoners. I do not think that is the situation. If we asked what percentage of the population of Ireland was taking sleeping tablets or other psychotrophic drugs it would not be considered an infringement of medical confidentiality. The public should know more about this type of situation and their right to information on these matters. I hope the Minister will address this entire area. We have no notion of the number of Irish people in psychiatric institutions abroad.
I would like the Minister for Health to tell me what has happened to the people who were discharged from long term psychiatric care into community care on 1 July 1993. We all look forward to the treatment of an increasing number of people in the community but resources have not been put into treating people with severe psychiatric illnesses. I wish to know how many people are back in a psychiatric hospital, in prison, in England or in prison in England. These are very interesting questions. We might find that without proper supervision a substantial number of people have ended up in prisons here or abroad.
 I hope the Minister will address this issue; these people may be among the most important in terms of those repatriated to Ireland. They and their friends and relations who want them returned to Ireland, should be informed that the incidence of suicide within our prisons is double the level in British prisons and that there is virtually no training for prison staff on how to recognise and deal with depressed prisoners. The concentration in prisons has been on preventing prisoners hanging themselves. I appreciate this is the main method used by prisoners who take their own lives, but concentrating on its prevention is not the solution.
The juvenile group has not been addressed to date. This is a serious matter and we should try to repatriate this group as early as possible. We know that approximately one third of those in detention are under 19 years of age and that a substantial number of juveniles are in prison when they should not be there at all because they are too young. The Minister has not been long in her job and I hope she does not think I am taking her on personally. However, today's newspaper mentions yet another change regarding the detention of juveniles in Oberstown House; one wonders if there is a serious plan regarding the detention of juveniles in this country.
I constantly read in the newspapers about judges stating they have nowhere to send juveniles. This is an extremely serious problem and recidivism within this group is very high. Parents appear before the Children's Court begging for their children to be taken into custody, but there is no secure or semi-secure custody for many of them and poor educational facilities are available to them. I could bore the Minister with details but she is aware of all the problems in this area. However, it is a most important matter and we should try to have as many juveniles as possible returned to Ireland. It will be disastrous if this cannot be done and we should try to ensure that they serve as much of their sentence as possible in Ireland  where they have ties. Even if they are from broken families in Great Britain, they may have grandparents here who would take up their cause. I hope that can be looked into as urgently as possible.
This is a great opportunity to look seriously at what we can do within our own prisons to facilitate a better regime. The Minister will be glad to hear that I am not one of those urging her to increase the number of prison places, which seems to be a waste of time. We have twice as many prisoners now as we had in 1980 and no one can say that the level of crime has halved — it has, in fact, more than doubled.
The Minister must look at the serious problem of drug related crime, about which we are doing very little. However, as the Minister probably knows, the Cherry Orchard facility, Cuan Dara, opened this week, although it was promised for the spring. I am extremely glad because people telephone me and ask if I can get them admitted to somewhere safe so that they can try to get off drugs. It is quite ridiculous to have people telephoning local representatives asking to be taken into care. The extension of these facilities is urgent. There is very little treatment in prisons for alcohol abuse, apart from Alcoholics Anonymous. Narcotics Anonymous only appears to be able to give a limited amount of help in prisons. The Minister knows the difficulties of trying to contain the drugs situation in Mountjoy, in particular.
There are many complaints about the number of prisoners who are let out on temporary release. However, I think that we could tackle this and the drugs problem together. For example, while we do not have segregated units within our prisons for those who want to come off drugs, there could be a scheme of urine analysis during the week, whereby those whose urine was clear every day of the week would be given preferential treatment for weekend temporary release. If there was a good match on that weekend many of them would be keen to stay off drugs for the week so  that they could go to the match. It is quite an easy way to monitor who is—
Dr. Henry: It is used in Dutch prisons. Testing blood levels would be beyond the beyonds and I would not ask that of the medical staff, who are already under a great deal of criticism in Mountjoy. However, I must point out that it is only in Mountjoy that the medical service seems to be in such disarray. Doctors in other prisons seem to be providing as good a medical service as is possible. It is important to remember that while people are in prison to lose their liberty, we are not entitled to give them inferior medical treatment. This area must be looked at very carefully.
I urge the Minister to implement as many parts of the Whitaker report as she can, which will reduce the numbers in prison. For example, there is the possibility of increasing remission to a third of the sentence from a quarter for good behaviour. I am not asking for murderers and major sex offenders to be let out. I know that the Minister is addressing the question of non-payment of fines. The problem is not the number of people in prison for non payment of fines but the terrible disruption to prisons by imprisoning people for a day or two. I know that the Minister is aware that many of these people have worked out that it is much better to go to prison for a day or two than to pay a fine of £500. I urge her to increase the use of the probation service and non custodial sentencing. All of this was put forward ten years ago in the Whitaker report and this may be the time to address that situation.
This Bill is an important part of the peace process. I regret the lack of imagination shown in releasing Lee Clegg at this time. It would have been much wiser to make that part of a package involving prisoners from the loyalist and republican sides. However, it has  happened and it is fortunate that we are bringing forward this Bill so that we will be in a position to reciprocate as rapidly as possible. It is essential in all elements of the peace process for this Government to make whatever initiatives it can. We should in no way be seen to be lacking in making any efforts which can help the peace process, which was shown to have a fragile shell over the last few nights. Mercifully, it seems to have settled down again. I compliment the Minister on her speed in bringing this Bill before the House and, naturally, I will support it.
Mr. Daly: I do not wish to unduly delay the passage of this legislation which has been anticipated for some time. I compliment the Minister on expediting this Bill and getting it to this stage. It is legislation to give effect to a convention which has been the subject of some discussion since 1978.
I wish to put on record our appreciation of organisations such as the Irish Commission for Prisoners Overseas which have done tremendous work in this regard. There has been a campaign in my constituency for quite a while to secure the release of Joe O'Connell and Harry Duggan, two Clare people who have been held in custody in the United Kingdom. An organisation called Saoirse has been actively campaigning in Clare for their release and I hope that the passage of this legislation will make it possible to examine these cases at an early date to see if the Minister for Justice can make the necessary arrangements to secure their transfer.
The part which bothers me is in relation to the provision in the convention which gives absolute discretion to the member state to refuse to grant the release or transfer of a prisoner. If there is a blank refusal on the part of a party to this convention to agree to a transfer, there is no mechanism in this legislation to seek judicial review by the European Court of Justice or some other authority. Both the convention and the legislation are deficient in that respect. It may transpire that the member state will  have its way at the end of the day. However, where there is a difference of opinion and the member state is quite adamant in refusing to grant the application, there should be an appeals procedure.
Article 23 of the convention indicates a provision for friendly settlement. I presume that this will be a type of appeal mechanism. In the event of a member state saying that there is no way that it is going to transfer Mr. Daly from whatever prison he is in, there should be some mechanism whereby that decision can be appealed. I presume that the committee which exists under article 23 — the European Committee on Crime Problems of the Council of Europe — sits and adjudicates on issues. Under article 23 of the convention it has a provision for friendly settlement, and I presume that where there is a disagreement between two member states in relation to the transfer of a prisoner, the committee can undertake some sort of negotiation. However, it is not very clear how that would work in practice. There is certainly no evidence in the legislation that this can be put into operation.
Section 6 has a very clear subsection which says that the transfer cannot go ahead unless the sentencing state agrees. To my mind that would prevent one from raising cases under the article 23 provisions. Perhaps the Minister could clarify this in her Second Stage reply. If there is no mechanism under this convention whereby a dispute can be resolved by a third party, be it the European Court of Justice or some other element of the convention, then the convention and the legislation will be deficient and this needs to be remedied now.
Mr. Daly: That is all right. A question arose from what Senator Enright said as to what the situation was, but in my opinion that is not the situation. Many member states have signed the convention but have not given it statutory recognition in their legislative procedures. I am not sure whether that has changed recently or not.
Mr. Daly: If that is the case, further work needs to be done to ensure that the other member states who have not given statutory legal effect to these provisions will do so in order that this can operate successfully.
To a large extent this legislation is in the shadow of the prisoners situation in Northern Ireland and the whole peace process here. While the Minister indicated that this convention was not particular to any category of prisoner, and the convention distinguishes that, nevertheless it is difficult to look at this legislation today and not be keenly aware of the prisoners issue in relation to the peace process and how it is currently slowing the peace process down.
The decision of the British authorities to release Lee Clegg did untold damage to the peace process and to the negotiations on the prisoners' release issue generally. If the British authorities deal with cases on an individual basis, as they did in the Lee Clegg case, rather than in a global manner, as the Taoiseach recently pointed out to the British Prime Minister should be done, then the prospect of finding a settlement of the Northern question and maintaining the  peace process will be seriously undermined and jeopardised.
It is a matter of concern that people are out on the streets of Northern Ireland again, back into the violence we have seen and deplored for 25 years. To some extent the responsibility for that situation rests fairly and squarely on the shoulders of Sir Patrick Mayhew and the British authorities. At a sensitive time in the peace process they released Lee Clegg, knowing that would cause untold anxiety and would lead to a return of violence, including petrol bombings and other disruption, on the streets of Northern Ireland.
I hope that the British authorities can now adopt a sane approach and get down to dealing with the fundamental issues affecting the long term solution to the problems in Northern Ireland. Instead of dealing with these issues on a piecemeal, case by case basis, the British authorities should deal effectively with the prisoners' release issue so that we can move the peace process forward. There is an indication, at official level at any rate, that some new acceleration is being given to that effort.
Overall, this legislation will help to reduce the tensions caused by the detention of prisoners, especially in prisons in the United Kingdom. I welcome the legislation and fully support it. I hope the Minister can respond to the point I raised about the appeals procedure mechanism. Something should be written into our legislation to give effect to article 23 of the convention.
Ms Honan: I welcome the Minister to the House and I compliment her on bringing this Bill before us so quickly. I also compliment her for the welcome changes she made to the Bill during its passage through the Lower House. The fact that she is willing to amend the original Bill displays a sense of maturity on the Minister's part. We have seen examples of that already in this House, Minister, and I compliment you on making this a better Bill.
 There is broad agreement among parties that this Bill is a necessary humanitarian measure which facilitates the transfer of sentenced persons from foreign states to Ireland, and vice versa, to serve the balance of their sentences in their home countries. It is welcome on humanitarian grounds as well as being an essential part of the peace process.
People who are imprisoned in a foreign state may suffer unduly and out of proportion to the crime they have committed. They are usually isolated in a foreign country and may suffer by reason of cultural or religious differences. They may sometimes be held in very bad prison conditions. The fact that they are cut off from contact with their families and friends is a huge consideration.
While the Bill has received broad agreement, we need to address one issue of concern to all of us. We will now be bringing prisoners back from abroad, but we already have difficulty in containing persons sentenced to prison by our own courts. Senator Henry said she was not asking the Minister for more prison spaces, but the fact that the Minister has postponed the building of Castlerea prison as well as the new women's prison must give cause for concern.
The present prison system is failing in its duty to rehabilitate prisoners. The cost of containing persons in prison is quite sizeable — just under £40,000 per annum, which is a huge and frightening cost. Does the Minister accept that neither society nor the prisoners are getting value for that huge cost? Many prisoners tend to reoffend and thus return to prison again and again. There is no rehabilitation, education or training, no psychological or psychiatric services, no detoxification for drug addicts and very little benefit to the prisoners themselves or to society in general from the huge cost involved.
People are concerned that the present prison system is not managing to contain people who have been committed to custody by the courts. The device of temporary release is being used to disguise  the fact that many prisoners serve only between 25 and 50 per cent of their sentences. Many prisoners spend only a few days or hours in prison.
The fact that criminals are being released onto our streets in order to make room for others who have offended is not acceptable. Criminals are no longer serving their full prison sentences and, therefore, prison does not act as a deterrent. These criminals know how to take advantage of the system very well and they know that if they are caught they will have to serve very little time behind bars. Even if they do spend time in prison, the fact that there is little rehabilitative work, counselling or training, particularly for drug addicts, provides very bad value both to the State and to prisoners.
We have a revolving door system in our prisons. If an accused person is remanded in custody, a sentenced criminal will have to be released to make room for them. This is a crazy system. We need a separate remand centre so that people who are presumed innocent do not come into contact with hardened criminals. It is also crazy to have young offenders mixing with hardened criminals and drug addicts. Many of these people have no chance once they are imprisoned. They will emerge in a worse state than that in which they entered prison. They will probably embark on a life of crime and continue to be readmitted to prison. This is very regrettable.
The Minister stated in her speech to the Lower House that there were approximately 650 Irish nationals in foreign prisons and the majority of these, 75 per cent, are detained in Britain. The Irish Commission for Prisoners Overseas has estimated that something like 40 prisoners will be returning to Ireland immediately, with ten per year returning thereafter. We must consider the effect that this will have on our prison system. What will the Minister do to address this issue, in view of the fact that she has postponed the building of Castlerea prison and the women's prison? I accept the fact that not all prisoners held abroad would want to return to prison  in Ireland, because many would feel that greater emphasis is placed on training and rehabilitation in foreign prisons. We must be concerned about the numbers involved and the impact they will have on prison space in Ireland.
I would like to ask the Minister what her intentions are in relation to reforming the bail laws? While we would advocate that they should be reviewed, this would also have an impact on the number of prison spaces. It is crucial that reform should be carried out in a considered and co-ordinated manner. There is no point in reforming the bail laws if the only result is that convicted criminals are released to make room for persons remanded in custody. Most crime is drug related, particularly in urban areas, and a secure medical unit should be established for the detention of drug users, both convicted and on remand. There is need for a national detoxification unit for criminals who are drug addicts. What are the Minister's intentions in relation to this particular area?
I believe it is a very practical and sensible proposal and would make a real contribution to the fight against drugs. The State could use the time offenders spend in custody to assist them in coming off drugs permanently. I am aware that it would cost a considerable amount of money to establish a unit of this kind. However, the cost of drug abuse to society is incalculable. Our crime problem might be reduced by enabling people in prison to come off drugs. Many crimes, particularly in urban areas, result from people trying to feed their drug habit. If we spent our money wisely we could get better value for detained persons themselves and society in general. I urge the Minister to consider these proposals. Perhaps she could outline her thinking on these matters.
This Bill must prompt a complete review of our prison system. We have seen that there are many inadequacies in it. I know that the Minister is aware of these inadequacies. I realise the huge cost implications involved with implementing many of the changes she  would like to introduce. However, the cost of the prison system is quite sizeable at present and I do not believe we are getting very good value for that money.
I welcome the changes made in section 2 which allow a transfer to take place between this country and a state which is not party to the convention. I also welcome the change in section 3 that foreign nationals must be informed of the substance of this Bill in order that they may make an informed choice as to whether or not they would like to avail of it. Both changes were essential. The new section 10, where the Minister is obliged to furnish a statement specifying the grounds for any refusal of an application, is very welcome. Laying the report before the Houses of the Oireachtas on an annual basis is also to be welcomed.
I welcome the Bill, on humanitarian grounds, with regard to the peace process. I support what other Senators have said in relation to the lack of imagination of the British in releasing Lee Clegg, which had a huge impact in the North. They should have thought again about that release, with the peace process at such a delicate stage. My only reservation about the Bill is in relation to the need to bring about changes to the present prison system in Ireland. Many changes are needed to reduce the number of people returning continuously to our prison system. We have a very small number of women prisoners, but many of those in the women's prison in Mountjoy are feeding a drug habit and are involved in petty crime, bag snatching, etc. They are returning to prison time after time. In discussing this issue with the governor and assistant governor of the prison, it was frightening to hear that the daughters of women prisoners are now being imprisoned themselves because the only life they have seen is one of crime. While in prison they are not given any great help to move away from a life of crime and drugs, which is regrettable.
 I know that the Minister's heart is in the right place and she is considering these issues. I am aware that she is probably experiencing difficulty in obtaining the funds she requires from the Department of Finance. However, we should consider how we could spend the available money in a better way to reduce the number of people we need to send back to prison.
Professor Lee: I will not detain the House by reiterating what other speakers have stated. I support the Bill. I congratulate the Minister for introducing it with a degree of expedition which was challenged, most unfairly, in the Lower House. I wish to express my own concern about the way in which the Lee Clegg affair has been handled. I would also like to express bewilderment at the manner in which the British Government, having bitten the bullet in the Framework Document, have shown a certain lack of imagination in the way they have sought to implement the principles underlying that document. Their performance in the application of the detail of the Framework Document has, so far, been distinctly inferior to that of our own Government.
I welcome the Bill for all of the reasons hitherto advanced. I hope it will make a contribution to the peace process and deal with the human problems of other types of prisoners in a humanitarian manner. I hope it will be interpreted generously and magnanimously by all parties involved. I have one question for the Minister. The answer is probably before me, had I done my homework better. Section 3 provides that foreign nationals serving sentences here must be informed of the substance of the Bill in order that they may make an informed choice as to whether or not to seek to avail of it. That is very sensible. I note also that applications for inward transfer must be made either by the sentencing state or directly to the Minister by the sentenced person. Who informs Irish prisoners abroad of their rights under this legislation? Do we do that? Do we have the information  needed to identify these prisoners? Do we inform them now of the possibilities, or is that left to the sentencing state? This is simply a query to the Minister and is not meant to be adversarial in any way.
Minister for Justice (Mrs. Owen): I thank all Senators for their contributions. My original speech was twice as long as the one delivered and would have covered many of the issues raised by Members. However, because of time constraints I reduced it to eight pages from 16. Some of the questions I will now answer would have been dealt with in the original speech.
Mrs. Owen: I thank Senators for recognising that this Bill was speedily introduced. Following the ceasfires last year it was indicated by the previous Government that they too were anxious to introduce this legislation. We are ratifying a convention which was signed in 1987, so it has been a long time coming. However, there were probably all sorts of reasons why that was the case and we should not allow it take from the Bill.
I want to address some of the issues raised because it is important to put the facts before the House. Senator Enright helped me by putting forward some figures. It is difficult to say how many people will apply under this legislation because we have no experience of how it will operate. It is not a fair assessment to just tally the number of Irish prisoners serving sentences abroad and automatically state that they will all seek to come back. There will be many reasons why people will or will not use this legislation.
At any one time there are about 600 Irish prisoners serving sentences in jails abroad. They are not all in countries  that have ratified the convention or countries which even want to avail of the bilateral mechanism we included in the legislation. A country may not want to be involved in either a multilateral or bilateral arrangement, and unfortunately an Irish prisoner in such a country will not be able to avail of this legislation. Figures are changeable because of the nature of prison sentences. The most recent figures indicate that there are 402 Irish prisoners in the United Kingdom, four in Belgium, 14 in France, four in Germany, two in Greece, seven in the Netherlands, eight in the USA and one each in Italy, Portugal, Spain and Canada.
Approximately 35 of the 402 Irish prisoners in the United Kingdom are serving sentences for what would be termed paramilitary offences. The Irish Commission for Prisoners Overseas have intimated on several occasions that there will probably be about 35 to 40 applications initially. I imagine they are, in a general way, referring to this body of prisoners in the United Kingdom. It is fair to say that this group of prisoners would be better informed about this legislation because of the people dealing with them. A single Irish prisoner in a prison outside of those where these paramilitary prisoners are serving sentences may not even be aware of this debate. These prisoners are aware of it because their families are aware of it and organisations such as the Irish Commission for Prisoners Overseas have been in constant touch with them. Social workers and other people working for them in the UK are also keeping them informed. As soon as this legislation becomes law they will be well aware of what is happening.
As Senator Enright said, there are approximately 180 non-national prisoners in our prisons. This convention and legislation represent a two-way process. There has been much comment about spaces and so on. We hope there are prisoners here who will seek to return to their own countries. On 15 March 1995 there were 184 non-national prisoners in our prisons. Some 2.7 per  cent of the total prison population is from Northern Ireland, 5.7 per cent is from other EU countries and 0.2 per cent is from non-EU countries. Obviously, by far the biggest number would be those from the UK.
On 15 March there were 103 English prisoners in our prisons and these may well seek to be transferred back to England; equally they may not. The next biggest number was 57 prisoners from Northern Ireland. There are ten Scottish prisoners, two from Germany, three Dutch prisoners and one each from America, Australia, Austria and Belgium, India, Italy, Malawi, Wales and Hong Kong. They will all be informed, in a language and way which they can understand, of the terms of this legislation and perhaps some of them will seek to return to their own countries.
We are the only EU member state which has not ratified the convention while 26 of the 34 Council of Europe member states have ratified it. Other countries which have ratified the convention include Bulgaria, Cyprus, the Czech Republic, Hungary, Iceland, Malta, Norway, Poland, Slovakia, Slovenia, Switzerland and Turkey. The nonmember states are the Bahamas, Canada, Croatia, Trinidad and Tobago and the United States. We have amended the Bill to allow for bilateral arrangements with countries because, sadly, Irish people occasionally get into trouble in countries which are not party to the convention but which may agree to such a bilateral arrangement. These countries may include Thailand, Taiwan and other places where Irish people are now getting into trouble.
A family member can apply under the legislation. Section 4 of the Bill allows a legal representative or some suitable person to make the application on behalf of the prisoner. This would apply where somebody is ill or suffering from a psychiatric ailment in a prison abroad. If a prisoner is refused — and obviously I will give them the grounds for refusal — there is nothing to stop that person  or their legal representative from applying again.
I will always have to be sure that we can accept a prisoner back into our system and provide them with suitable accommodation. If I get an application from a woman prisoner abroad and I have no place other than in a male prison, I will have to put the application on hold until I have a place for a female prisoner. If I get an application from somebody suffering from AIDS or other illness and I believe that the most appropriate place for them is the health care unit of a prison, I will have to be sure there is a place for them. Those are the relevant considerations and any Minister must have the freedom of choice and discretion to make the decisions.
It is not unusual for a Minister or local authority to have such a discretion. If a person applies to a county council for housing, the council must have the discretion to be able to say that it has accepted the application but cannot accommodate the person because it does not have a house for them. There was much comment about this during the debate in the other House and there was an attitude that I should automatically grant applications and say I have places for these prisoners. I must have discretion.
I want to stress that the kernels of this convention are agreement and voluntariness. There is no onus on a prisoner to take a transfer if a sentencing or administering state says they want them to do so. It must be agreed by the prisoner, the sentencing state and the administering state. That is a safeguard. People tend to think it is only a safeguard for the countries, but it is also a safeguard for prisoners. A situation could arise where a sentencing state might decide forcibly to get rid of a prisoner they did not want to keep in their country. This might not be in the prisoner's best interests, or he or she might not want it. There must be a three-way agreement. The High Court is used for constitutional reasons.
Senator Henry raised the issue of continued enforcement and mentioned that  the Netherlands is using a different mechanism. The convention allows countries to operate either continued enforcement or conversion procedures. We are using continued enforcement because it is simple and allows transfers to take place more quickly. It will not involve us in lengthy court procedures and arguments, it is more straightforward and it would operate with greater certainty. It is in the best interests of the sentenced person because they will have received their sentence in the country where they were put in prison and they will know what their sentence is.
If we decided to use the conversion system an uncertainty would be brought into the system. Perhaps the country the prisoner is seeking to have his or her application considered for has a much longer sentence for their particular crime; to use the conversion system would lead to uncertainty. Now and again there might be a shorter sentence in the country to which the prisoner is applying, but this legislation will ensure that a prisoner will not be worse off by coming back. The sentence will not be made longer when they come back. Now and again there will be an element of the conversion process if we do not have a similar kind of sentence here.
Senator Henry also spoke about juveniles. This legislation allows for the transfer of juveniles. It does not say it explicitly but it is implied. The word “sentence” means that the Bill applies only to persons whose punishment for an offence involves deprivation of liberty. It is important to recognise that. It is not involved where a sentence such as weekend work is imposed. There has to be a deprivation of liberty before this legislation comes into effect. The Bill applies regardless of whether the person concerned is already serving the sentence imposed or not and regardless of what type of institution the person is detained in.
The sentence could have been imposed on a person who has not started to serve his or her sentence. They can immediately apply, if they wish, for a transfer once the sentence is  final and no court of appeal is open to them. For example, a person could be found to be mentally disordered and detained in a hospital abroad or could be detained in our Central Mental Hospital, found to be insane during the proceedings, under section 17 of the Lunacy (Ireland) Act, 1821, or to have been insane when the offence was committed, under section 2 (2) of the Trial of Lunatics Act, 1883.
Subsection (2) of the Bill provides that reference to offences in relation to acts done outside the State includes reference to any act which would be criminal but for the age or incapacity of the person concerned, so children and mentally disordered offenders are included in the Bill. I will not discuss this issue further now.
I will talk again to Senator Henry about the whole issue of urinalysis. I am following this issue up with the forensic science laboratory. There is some disagreement as to how effective urinalysis is in establishing whether someone is on a disallowed drug. It may also show up drugs which the person is allowed to be on.
I wish to stress to Members that this State is using a wide range of non-custodial sentences. At any one time 3,500 people are on community service and diversion schemes, so it would be wrong to give the impression that all we do with criminals is lock them up. There are a number of schemes that we are operating very effectively to prevent the kind of recidivism that Members have talked about.
Senator Honan made very strong statements to the effect that no education or training is available within the prison system. I wish to correct that. The system is not perfect, but there are very extensive education facilities in our prisons. I would welcome any requests for visits to those prisons so that Members can see for themselves what is on offer. There are in excess of 20 full time teachers on the staff of Wheatfield prison. I have visited the teaching and educational facilities there. Ironically, some of the temporary release forms I  sign for prisoners are to allow them to receive their graduation certificates in colleges throughout the country.
Many of our prisoners have used their prison sentences to avail themselves of education and to get university degrees and other qualifications. When they come out they are able to use those qualifications. In fairness to the many people providing educational, psychological and other services in our prisons, it would be wrong to give the impression that our prisons are nothing but a bunch of cells with prison wardens standing outside them.
Many rehabilitative schemes are taking place in our prisons. I would like to see more of these and I am working on providing them. Issues such as the detoxification unit and the drug free unit have been talked about for years. They were talked about before I became Minister, but I hope I will be the Minister who will at least begin to implement some of the suggestions and proposals from the Whitaker report. We are already on the way to introducing methadone treatment for those prisoners who are already on it when they come in and we are already planning a detoxification centre in Mountjoy prison. The drugs free unit will be very costly and we are working on that too. I cannot give any indication when that might come about.
Senator Ormonde asked me about the reintegration of prisoners here. When prisoners come back to this country they will come back to serve a sentence. They will be allowed to avail of whatever facilities are available in the prison they are serving their sentence in and when they come to the end of their sentence they will be treated the same as if they had been sentenced in this jurisdiction. They will get what assistance they can from the probation services and so on.
Senator Lee raised the issue of foreigners. We amended the Bill to allow me to make sure that prisoners here who are non-nationals are told about the full implications of this convention and we  will be preparing fact sheets to be given to them. The convention will also be explained to them in case they have difficulty in understanding it. Article 4 of the convention obliges each country to make information available. I cannot oblige another country — for instance, the UK — to tell Irish prisoners there about this convention. It is up to each country to make that information available. However, I believe the information will get to prisoners overseas because their families will make sure they know about it, so I am not unduly concerned in this regard.
Some Irish prisoners abroad have not told their families they are in prison and that is a difficulty. Clearly, in our discussions with other states we will be stressing that it is important they would be as lenient in making information available to Irish prisoners there as we have been here.
A number of Senators referred to spaces in our prisons. This is precisely why I have to keep the discretion this convention is giving to all countries. It is a voluntary convention; any moving away from the voluntary nature of this convention would not be in keeping with the convention itself. I will have to take into account the space available for prisoners when I am looking at an application, but if space is the only ground for refusal I will indicate that and let the prisoner know that he or she has the right to come back at a later date and look for a transfer again. When I begin to operate this convention it may be possible to institute a waiting list, a mechanism that is not unheard of in our system. People cannot always get what they want from the local authorities, etc. when they first apply for it and they go on to a waiting list. I will have to examine such working mechanisms when the system is in operation. Senator Daly made the point about an appeal but an amendment has been proposed in this regard so I will respond to it at that point.
I wish to put on the record of the House my thanks and appreciation to the Irish Commission for Prisoners  Overseas. They have been extremely helpful in the preparation of this legislation. I know from looking at the amendments tabled in both Houses, although it is not so obvious in the Seanad, that they circulated their proposals and amendments to all Members of this House. I recognised some of the amendments which were put down from the paper I received from them. I wish to put on the record of the House my appreciation of their work and the way in which they have kept this issue to the forefront of political debate in this country.
There is a very strong humanitarian element to this legislation to which all Members have referred. I thank Senators for their positive contributions to the debate and for their co-operation in dealing with it.
Mr. Manning: On the Order of Business this morning, the House agreed to adjourn at 1 p.m. However, the Minister is willing to take Committee Stage now. If Members agree, we will not have a sos now but will take the next Stage.
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