CRIMINAL JUSTICE (MUTUAL RECOGNITION OF PROBATION JUDGMENTS AND DECISIONS) ACT 2019
The main purpose of the Act is to transpose Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition of judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions. The effect is to allow an Irish resident who is sentenced to a period of probation for an offence committed while temporarily in another Member State, to return home and be supervised by the Irish Probation Service.
It also allows a resident of another Member State, who commits an offence in Ireland for which he or she receives a sentence of probation, to return to his or her country of residence under the supervision of the probation services in that State. The Act does not apply to a judgment which is handed down before the commencement of the 2019 Act.
The Minister for Justice and Equality and the courts are designated as the competent authorities for the Framework Decision.
The Minister for Justice and Equality may by regulation, designate appropriate persons to carry out functions for which he or she is the competent authority for the purposes of the Framework Decision. The Minister to notify the General Secretariat of the Council of the European Union of any designations made under this section.
Part 2 applies when the judgment in question is handed down in the State ie. where the State is the issuing state. There are definitions to be used solely for the purposes of Part 2 of the Act.
There is a mechanism for initiating the process of forwarding a judgment, and if applicable, a probation decision to another Member State. This process can be initiated by a request to the Minister made by the Director of the Probation Service or the sentenced person.
The Act sets out the process for the forwarding of a judgment. The Minister may forward the judgment to another Member State if the sentenced person ordinarily resides in that Member State and he or she wishes to return there.
The Minister for Justice and Equality may withdraw the request to transfer the supervision of probation measures or alternative sanctions to another Member State. The Minister may withdraw the request if he or she does not agree with any adaption to the probation measure or alternative sanction made by the other Member State or the penalty the sentenced person would face for failing to comply with the probation measure or alternative sanction.
There is a transfer of competence for the supervision of probation measures or alternative sanctions to another Member State, where that Member State recognises the judgment and, where relevant, the probation decision sent to them from the State. The Member State also takes competence for subsequent decisions relating to the probation measure or alternative sanction.
Obligation to provide certain information to Member State competent authority
The Minister for Justice and Equality is to inform the executing Member State of any circumstances he or she becomes aware of that would necessitate a subsequent decision to be made if competence for that decision is with the executing Member State. In limited circumstances where jurisdiction for decisions remains with the State then, following any decision made, the Minister for Justice and Equality must inform the other Member State.
Transfer of jurisdiction back to State
The Minister for Justice and Equality may request that the other Member State transfer jurisdiction back to the State where the sentenced person is charged with an offence in the State. The Minister for Justice and Equality may request information regarding duration and level of compliance of the sentenced person with the probation measures or alternative sanctions in the executing state and any subsequent decisions which were taken.
The following this part apply when Ireland is the executing state or the state to whom a judgment and, where applicable, the probation decision has been forwarded.
The Act defines corresponding offences for the purposes of the Act. It lists the probation measures and alternative sanctions which Part 3 will apply to. This list includes a requirement for the sentenced person to notify a specified authority of any change of residence, to not enter certain areas, to avoid contact with specified people and to carry out community service.
There is a process by which the Minister for Justice and Equality can receive a request to supervise a probation measure or alternative sanction from an issuing state. It equires the Minister for Justice and Equality to communicate with the issuing state’s competent authority if the necessary documents are not received.
There is provision for supervision of a probation measure or alternative sanction by the State in circumstances where the sentenced person is not ordinarily resident in the State but is an Irish citizen or is deemed to have close ties to the State by the Minister.
The Act provides for circumstances where the issuing state has forwarded the judgment to a court, a Minister who is not the Minister for Justice and Equality or another public official. This section obliges that person to forward the judgment to the Minister for Justice and Equality.
The Minister for Justice and Equality may refuse to recognise a judgment forwarded to him or her in specified circumstances. Grounds for refusal include incomplete documentation, immunity, availability of specialist treatment, absence of consent and the judgment falling outside the scope of the Framework Decision. Where no specified grounds for refusal exist, the Minister must make an application to the appropriate court to endorse the judgment.
The court has the power to endorse or refuse to endorse a judgment forwarded to the Minister for Justice and Equality. If the probation measure or alternative sanction is incompatible with the laws of the State, the court may adapt these measures. If these adaptions are agreed to by the issuing state, the sentenced person may be supervised in the State.
Where the sentenced person is on conditional release or serving a suspended sentence, the court shall make an order specifying that the judgment will be treated as a temporary release under the Criminal Justice Act 1960 or suspended sentence under the Criminal Justice Act 2006, respectively. There are time limits for applications and decisions under section 23 of the Act.
The court, following the making of an order to endorse the judgment, to notify the sentenced person, the Minister for Justice and Equality, the Director of the Probation Service and the superintendent of the Garda Síochána district where the sentenced person resides or will reside.
Recognition of judgment and probation decision
There is recognition of the judgment and, where applicable, the probation decision when the court has made an order to endorse the judgment. Once the judgment has been recognised the Minister for Justice and Equality must take all steps necessary for the supervision of the probation measure or alternative sanction.
There is an obligation to provide certain information to competent authority in issuing state
The Minister for Justice and Equality is to notify the issuing state of: the recognition or refusal to recognise a judgment forwarded by the issuing state to him or her; any adaption of the probation measure; and, where applicable, that the State will not take responsibility for subsequent decisions in relation to the judgment.
The State will not assume responsibility for subsequent decisions in circumstances where a sentenced person is on conditional release and in the issuing state a judicial hearing must be held before revoking the decision made on their conditional release. In such circumstances, where a sentenced person being supervised in the State does not comply with the probation measure, any decision to revoke the conditional release must be taken by the issuing state. The sentenced person may participate in any hearing on the matter by video link.
A person may not appeal the judgment in the State. Any appeal would have to take place in the State that issued the judgment.
Jurisdiction for the supervision of the probation measure or alternative sanction will be transferred back to the issuing state where the Minister for Justice and Equality is satisfied on reasonable grounds that the sentenced person has left the State or absconded or where they are subject to new criminal proceedings in the issuing state and the issuing state has sought such a transfer.
The schedule contains the text of the Framework Decision.