Wednesday, 10 December 1997
Seanad Éireann Debate
“(a) in subsection (4), after “remission of sentence accrued in the sentencing state,” to insert “and such remission of sentence as would be likely to accrue if the sentence were to be served in that state, provided that such remission would be at least as favourable to the person transferred as the remission which would apply to a similar sentence
This is an important amendment. The amending legislation provides for the integrity of the sentence in the context of the sentencing state to be retained within the host country once the transfer takes place. It does not make provision for remission, while the convention and the original legislation referred to remission operating in the host jurisdiction. It would seem reasonable that where there is greater remission in the sentencing country as opposed to the host country, remission should operate at least as favourably in the host country as when the sentence was imposed. The Minister could easily accept this amendment, which would not interfere with the integrity of the sentence. It would also mitigate against a harsh sentence in the host country in the context of the maximum sentence being 35 years as against 20 years.
While the Minister said it is open to him to take into account disparities in remission, the Bill deals with sentencing but makes no provision for remission. I would prefer if the issue was dealt with in the Bill rather than leaving it on an adhoc basis. The Minister is not going to deal with every transferred prisoner and every sentence. Therefore, I commend this important amendment which is appropriate in the context of the legislation. I have discussed it with the various bodies involved in the prisoner issue both here and abroad.
Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I understand the thinking behind Senator Costello's amendment. At present when a court is issuing a warrant for continued enforcement under section 7 of the Act it has due regard to any remission of sentence accrued in the sentencing state. The amendment seeks to allow a court to also take into account any remission likely to accrue to that person if they remained in the sentencing state once that arrangement was beneficial to that person. Unfortunately, I am unable to accept the amendment for a number of reasons.
Article 9 of the Council of Europe Convention states that the enforcement of the sentence shall be governed by the law of the administering state and that state alone shall be competent to take all appropriate decisions. This provision is obviously fundamental to the operation of the convention and it means, in effect, that transferred prisoners are subject to the same remission arrangements which apply to other prisoners. This principle is underpinned by section 7(4) of the Act which states that the warrant issued by the court shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that court. The sentence is to be treated as if it had been imposed in this country.
Even if the issue of adherence to the convention did not arise, there appears to be a practical difficulty with the proposal in that remission is earned for good conduct and is prospective in nature. It could be argued that to seek to have a court grant remission in advance in such circumstances would be to overlook the nature of remission. It can also be argued, given the principle that remission exists to encourage good conduct, that it would be invidious to discriminate between prisoners in Ireland on the basis of where they received their sentences.
I am not dismissing the concerns expressed by Senator Costello. I am sure the House appreciates the sensitive issues involved and it would not be appropriate for me to comment on individual cases. However, sentences under the Act are subject to our laws governing remission, but they are equally subject to our laws governing temporary release. There is nothing in our law to prevent the Minister taking into account administratively, when considering a decision in relation to release, the fact that a person would have been likely to have gained a higher level of remission if they had remained in the jurisdiction in which he or she was sentenced. In these circumstances and given the provisions of the convention I mentioned, I regret that I am unable to accept the  amendment. I hope Senator Costello will agree that it would not be helpful to pursue the matter at this stage. However, I assure him that I have taken careful note of his remarks on the matter.
Mr. Costello: The Minister said the convention provides for a different approach. However, the amendment is to the legislation which will implement the convention and would not be at variance with it. It would dovetail well because the legislation and not the convention would be amended.
The Minister made an interesting statement about the current stage of the peace process in his reply to the Second Stage debate. The Bill was obviously introduced, as the Minister pointed out because he is its author, to resolve a problem he faced in relation to the integrity of sentences of republican prisoners. The Bill states that remission would be at least as favourable to the person transferred as the remission that would apply to a similar sentence in this State. There is a disparity in terms of remission rates which are a third in Britain, a half in Northern Ireland and a quarter in this jurisdiction. The Minister should take the amendment on board. I will put it to a vote if he is not prepared to consider it positively between now and the debate in the other House. The amendment has substantial merits and I ask the Minister to accept it.
Mr. O'Donoghue: Unfortunately, I cannot consider accepting the amendment because Article 9 of the convention states: “The enforcement of the sentence shall be governed by the law of the administering state and that state alone shall be competent to take all appropriate decisions.” This provision is fundamental to the convention. It means that people who are transferred to this jurisdiction are subject to the same remission rates as other prisoners here. The fact that the convention specifically states that the enforcement of the sentence shall be governed by the law of the administering state suggests that the Senator seeks to supplant the provisions of the convention with his amendment. I cannot agree to that.
An international obligation has been entered into and it was brought into force by the 1995 Act, which the Bill amends. If I was to interfere in the manner suggested by Senator Costello, I would supplant Article 9 of the convention. This would raise the issue of whether I was breaching the international convention. I do not wish to give the impression that I intend to reject every amendment tabled by Senator Costello, but I have a particular difficulty with regard to amendment No. 1 which I cannot overcome. In those circumstances I ask him to reconsider the position. I appreciate and understand his objective. I am aware that different remission rates exist, but the convention is specific regarding the function of the administering state in relation to enforcement.
In page 3, lines 24 to 26, to delete “in his or her absolute discretion if he or she thinks it appropriate to do so” and substitute “where he or she considers it appropriate and where the prisoner concerned, after being fully advised of the effect in relation to him or her, has expressly indicated in writing his or her consent
Mr. O'Donoghue: The point of the amendment is already covered by section 6(5) of the 1995 Act. This specifies that the Minister must be satisfied that all reasonable steps have been taken to inform the sentenced person concerned in writing in his or her own language of the effect of any warrant which may be issued in respect of him or her. It is difficult to understand how the amendment is a safeguard for prisoners. The issue in such an application would be to have the sentence imposed in the sentencing state reduced. It is unlikely any prisoner would fail to consent to this approach, particularly given the provisions of section 6(5) of the 1995 Act. Accordingly and unfortunately, I cannot support the amendment.
Mr. Costello: I support the amendment. It arises from the point that it is important applications are fully considered. It is also important the applications are in writing to ensure it is obvious that the prisoner understands the implications of the transfer. A number of issues have been raised in relation to remission and other aspects which could lead to prisoners serving a substantially longer sentence than they would have served in the sentencing jurisdiction. That will not interfere with the procedure other than to copperfasten it, so that those making applications know exactly what they are doing.
Mr. O'Donoghue: My reply may not have been as clear as it should have been. Section 6(5) of the 1995 Act covers this matter. It states that the Minister may not consent to a request under subsections (1) or (2) of the Act unless he or she is satisfied that all reasonable steps have been take to inform the sentenced person concerned in writing in his or her own language of the substance, so far as relevant to the person's case of the international arrangements in accordance with which it is proposed to transfer him or her and the effect in relation to the person of any warrant which may be issued in respect of him or her under section 7 of the Act. The person must also be informed of the effect in relation to the person of the law relating to his or her detention under such  a warrant and of the powers of the Minister under section 9 of the Act.
“(c) The period of operation of section 5(b) shall be 12 months from the commencement of the operation of this Act unless a Resolution is passed by both Houses of the Oireachtas resolving that the subsection will
This is a very unusual measure which means that prisoners will serve sentences longer than those prescribed in Irish law. It is designed to deal with the particular situation of a number of Irish prisoners sentenced to terms of 30 to 35 years, while the equivalent offence in Irish law carries a maximum term of 20 years. It is generally undesirable to have a situation where some prisoners in Irish prisons are requested to serve sentences longer than those prescribed by Irish law, and this might also be open to legal challenge. If the prisoners concerned wish to be transferred here, even on conditions that they serve longer terms, it may be reasonable to facilitate them. However, if a general power to imprison transferred prisoners for periods longer than the equivalent Irish sentence is introduced, it could allow a Minister to consent to persons being transferred here which could otherwise be regarded as excessive or unjust. This could arise in the case of transfers from a country like Turkey if it were party to the convention, and that could be unacceptable even if the prisoner concerned agreed to it. It is probably contrary to the spirit of the convention to limit any such legislation to one or more countries. Because of these concerns and the unusual nature of the legislation, I will press the amendment. The Minister should inform us of how things may have changed. It is important to review within 12 months legislation like this processed urgently.
Mr. Cosgrave: I support Senator O'Dowd's amendment. It is important that certain legislation is not forgotten. It is in the Minister's interest, given difficulties in his Department in recent years, that a review should be done to see if improvements need to be made. This amendment is reasonable and the Minister should accept it.
Mr. Costello: I support Senator O'Dowd's important amendment. The legislation relates specifically to seven prisoners whose sentences in another jurisdiction are in excess of those permitted here. Once that transfer has been processed,  there seems to be no immediate need for the legislation. While the Act is couched in general terms and might apply to a range of offences in any jurisdiction, it has been introduced for a specific reason. It would be improper that the legislation lapse once it has fulfilled its function. This could be done by providing that it would cease to operate after 12 months unless reasons why it should continue are presented to the Oireachtas. Checks and balances are necessary for our legislation. Many concerns expressed here would be modified if the Minister accepted this amendment.
Mr. O'Donovan: It should not be forgotten that a section of the 1995 Act appears to be inefficient. We are currently dealing with Provisional IRA prisoners in Britain, and the lacuna in the 1995 Act has necessitated this Act. If the amendment were accepted, it would defeat the purpose of the legislation. In the current climate a prerequisite for the transfer of any prisoners is acceptance that the sentences imposed must be respected. This applies particularly to Britain, which is the country we are most likely to deal with. Sentences here will have to be adapted so that any prisoner transferred here does not serve a lesser sentence because of that transfer. This amendment would defeat the thrust of the Bill.
Mr. O'Donoghue: This amendment is neither desirable nor necessary. Experience of the operation of the convention has shown that some States are not prepared to consent to transfers unless a guarantee can be given that the sentence imposed will not be reduced. If the sentencing state decides not to transfer a prisoner on the basis that the sentence would be reduced if that occurred, the legislation and convention would be rendered superfluous. In reality, some countries insist upon the integrity of their sentences being respected by the state to which a prisoner is transferred. Because consent is a three-way process, there is nothing the administering state can do. One would not be in the real world if one felt one could oblige a state to consent. One of the main concerns of sentencing states is that the integrity of their sentencing is respected. If that does not happen, there are no transfers, and in that case the convention cannot work. That is the position in the real world.
The only way in which I could give assurances to the British Home Secretary, for example, that the integrity of the sentences handed down by courts in his jurisdiction will be respected by courts in this jurisdiction is if the amendment to the 1995 Act proposed by this Bill is passed. Otherwise, it is quite clear I could not give the categoric assurances which are required. It may be the case that other states will seek such categoric assurances in the future. There may also be further cases, in addition to the seven cases to which Members are referring, where such a categoric assurance will be required.
 The question of the need for categoric assurances is not locked into a 12 month timeframe or any other timeframe. Such guarantees could be required at any time by any foreign jurisdiction. If the Minister for Justice, Equality and Law Reform of the day is not in a position to give the required categoric assurance, that could only militate against the prisoner held in a foreign jurisdiction who wants to be transferred to Ireland.
It is quite clear this Bill will work to the advantage of applicant prisoners more than anyone else because of the requirement for three way consent. For example, the consent of this State and that of a prisoner in a British jail to his transfer to this jurisdiction is not sufficient — the British Government must also consent. If the British Government felt in certain instances that we would not respect the integrity of sentences handed down in British courts, the entire arrangement would probably be cancelled. Those are the pragmatic facts. There is no mystery about it — it is quite lucid.
I see nothing wrong in principle with what is being proposed. However, the situation will not have changed in 12 months' time or the foreseeable future. With the greatest respect, the amendment is pointless and should not be accepted.
Senator O'Dowd said the Bill was about people serving longer sentences in this jurisdiction than they would if they had been sentenced by an Irish court. That is not what the Bill is about. It is about this sovereign Government being in a position to give categoric assurances to a foreign jurisdiction, within the context of our legislation, that it will respect the integrity of sentences handed down by its courts. It is about facing the reality that if we do not do that, the unfortunate prisoners who want to be near their families will not be able to be transferred.
This Bill is not being proposed to do down prisoners or to ensure they serve longer sentences in this State than they received in other jurisdictions. It is about helping the transfer process by ensuring the Government can guarantee, where required, that the integrity of sentences imposed in foreign jurisdictions will be respected here. While the Bill will immediately affect seven Provisional IRA prisoners, it is not confined exclusively to them in terms of its scope or timeframe.
Senator Cosgrave said I should accept this amendment in light of recent difficulties in my Department. I am not aware of any recent difficulties in my Department. I am aware of the attempt by some politicians, in these Houses and elsewhere, to—
Mr. O'Donoghue: —ascribe decisions of the courts to my Department. I am aware of attempts to inveigle me into criticising the courts and to supplant them in interpreting the law of the land.  All those attempts failed miserably. It might be as well to leave the matter there.
Acting Chairman (Mr. Dardis): I remind the House that all Stages of the Bill must conclude by 2 p.m. I do not wish to restrict discussion of this or any other amendment, but there are four more amendments to be dealt with between now and 2 p.m.
Mr. Costello: I will not delay the House. The British Government has in every transfer application to date sought an undertaking from the Minister for Justice that the integrity of the sentences will be respected. This is the first time there has been a demand for legislation to copperfasten that position. It is strange that we must suddenly introduce amending legislation when an undertaking to respect the integrity of the sentences has always been sought. The previous Minister made a commitment to grant those undertakings.
This is the only issue to arise over the past couple of years on which there has been a showdown and on which no progress can be made unless amending legislation is enacted. It relates to a specific issue; otherwise, it would not be before us. We must respect our own laws, criminal justice system and administration of justice. It is not good for us, as legislators, to encourage a situation whereby any jurisdiction, not necessarily a democratic one but one such as Turkey, could insist that transferred prisoners serve out an unjust sentence imposed by a repressive regime.
We can make a commitment to respect the integrity of sentences without statutory obligations. It behoves us, as good legislators, to ensure the legislation is operating properly. Therefore, it should be reviewed after 12 months.
Mr. O'Donoghue: While it is true the legislation addresses a specific issue, it is equally untrue to say it addresses specific individuals. I hope it will be of benefit to certain prisoners whom this issue affects in the immediate future.  However, that is not to say the issue will not affect other prisoners in the future. I cannot say that and, with all due respect, neither can Senator Costello nor anybody else.
There is already a requirement under the Act for a report on its operation to be laid before the Oireachtas each year. This is quite sufficient and there is no need for further such requirements. I was not aware of a demand to change the legislation. It has been introduced by me on foot of assurances which I want to be in a position to give. To date, I have been in a position to give categorical assurances with regard to prisoners transferred to this country that the integrity of their sentences would be respected. I have been able to do that because of the fact that there was no great difference in terms of sanctions in either jurisdiction in respect of those cases.
With regard to the seven cases concerned, the position now is that some of the prisoners are serving prison terms of 30 to 35 years, whereas the corresponding maximum sentence in this jurisdiction is 20 years. In these circumstances it is clear that unless I amend the current legislation, as is proposed, I could not give categorical assurances with regard to prisoners who were given a greater sentence in a foreign jurisdiction than could have been imposed in this jurisdiction in respect of the same offence.
The question did not arise before. This is the first time that sentences greater than our maximum have been involved. Were it the case that I did not, of my own volition, introduce this legislation then it would not be possible for me to give the categorical assurance which may be sought with regard to those, and future, prisoners. In that event, it must be clear that the prisoners would not be transferred.
This legislation is designed to ensure that I can give the categorical assurance when it is requested so that prisoners can benefit from the convention and the legislation. Any argument against that arises from a misinterpretation of what I am trying to achieve.
Cosgrave, Liam T.
Cregan, Denis (Dino).
Gibbons, Jim. Moylan, Pat.
Mooney, Paschal. Ormonde, Ann.
Ó Murchú, Labhrás.
Amendment No. 4 not moved.
An Cathaoirleach: Amendments Nos. 5 and 6 are related and may be discussed together.
Mr. Costello: I move amendment No. 5:
In page 4, before section 2, to insert the following new section:
“.—The Transfer of Sentenced Persons Act, 1995, is hereby amended by the insertion after section 10 of the following section—.
'10A.—The Minister shall as far as practicable make a decision on an application under section 4(1) of this Act or on a consent to an application under subsections (1) or (2) of section 6 of this Act within 6 months of the date of the
This amendment seeks to ensure that, as far as practicable, the Minister makes a decision on an application within six months of the date of the application. Amendment No. 6 seeks to keep the applicant informed on a regular basis about the progress of the application. These matters were mentioned before in terms of the administration of justice because of delays experienced by prisoners and their families. Approximately two thirds of prisoners wait more than 22 months for applications to be processed. I ask the Minister to seriously consider these two amendments.
Mr. O'Donoghue: As I indicated at the outset of the debate, I am prepared to take on board constructive amendments. I consider amendments Nos. 5 and 6 to be constructive. The purpose of these amendments is to ensure that, as far as practicable, applications are dealt with within six months and that an applicant is kept informed of their progress. I assure the House that applications are dealt with as expeditiously as possible. It is important to emphasise that because of the involvement of the second jurisdiction the timescale is not entirely within our control. Nevertheless, I appreciate the philosophy behind these amendments and in those circumstances I am prepared to accept them.
Amendment agreed to.
Mr. Costello: I move amendment No. 6:
In page 4, before section 2, to insert the following new section:
“.—The Transfer of Sentenced Persons Act, 1995, is hereby amended by the insertion after section 10 of the following section—
‘10B.—Pending a decision on an application under section 4(1) of this Act or on a consent to an application under subsections (1) or (2) of section 6 of this Act, the Minister shall keep the applicant (and the sentenced person concerned, if he or she is not the applicant) informed at regular intervals on the progress of the application.’.”.
Amendment agreed to.
Mr. Costello: I move amendment No. 7:
In page 4, before section 2, to insert the following new section:
“.—The Transfer of Sentenced Persons Act, 1995, is hereby amended by the insertion after section 10 of the following section—
‘10C.—Where a sentenced person is dissatisfied with a decision of the Minister refusing an application under section 4(1) of this Act or refusing a consent to an application under subsections (1) or (2) of section 6 of this Act, concerning that person, he or she may within 2 months of being informed of the decision, or such longer period as the High Court may order, appeal against that decision to the High Court, and that Court may if it is satisfied that it is proper to do so, direct the Minister to grant or consent to the application as the case may be.’.”.
Mr. O'Donoghue: This amendment proposes a right of appeal to the High Court against decisions made by the Minister on applications made under the convention. Unfortunately, I cannot agree to the amendment. Transfers take place under an international convention and arrangements for transfers are purely a matter for the executives of the states involved. However, the convention has stated the right to refuse any application and it would be inappropriate for that  decision to be left, ultimately, to the courts. This is what is proposed by the amendment.
One of practical issues which arises is the effect which transfers have on the availability of prison accommodation. It would be unthinkable for control over this matter to be taken away from the Minister. I emphasised that decisions on transfers are policy matters for the Executive, not the courts. Our courts are involved in transfers into the jurisdiction but that involvement relates to ensuring the lawfulness of the detention of a person who is being transferred. The actual consent for the transfer is a decision for the Minister.
As Minister, I am responsible to the Oireachtas for the actions which I take under the legislation. While I cannot accept this amendment, I assure Senator Costello and the House that I will continue to operate the convention to facilitate to the greatest possible extent transfers into the jurisdiction where they are warranted.
Amendment put and declared lost.
Section 2 agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: “That the Bill do now pass.”
Mr. Costello: At the outset I protested that the House was taking all Stages of this Bill in one sitting. The House acknowledges that this is an important Bill. I would not like to see such a precedent established in either House. It is bad for legislation and for this House and I hope it will not happen again.
I understand the importance of this legislation and I thank the Minister for the manner in which he has dealt with it. He has been courteous and wide ranging in his replies to the amendments. I thank him for accepting those amendments which I consider to be important.
Mr. O'Dowd: I thank the Minister and his officials. This was a very good debate.
Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I thank Senators for their courtesy and efficiency in dealing with this important legislation. I agree with Senator Costello that it is undesirable to rush legislation through either House. Unfortunately, this legislation is urgent for the future transfer of prisoners to this jurisdiction. That is why I asked the House to take this Bill today and I am grateful to Senators for agreeing to do so. The Bill will be brought to the Dáil and I, expect, passed expeditiously. However, I do not wish to create a precedent. Urgent legislation must be dealt with urgently. In the vast majority of cases, legislation should be carefully analysed and thought out  prior to being passed. This was an exceptional circumstance and I am grateful to the House for accommodating me in the manner in which it has.
Question put and agreed to.
Sitting suspended at 2.5 p.m. and resumed at 3 p.m.
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