Primary Purpose of the Act
The primary purpose of the Criminal Justice (Mutual Recognition of Custodial Sentences Act 2023 is to implement European Union Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.
Under the Council of Europe Convention on the Transfer of Sentenced Persons 1983, and the Additional Protocol thereto, implemented in Ireland through the Transfer of Sentenced Persons Acts 1995-1997 and the Transfer of Execution of Sentences Act 2005, persons upon whom a custodial sentence has been imposed may be transferred to another Convention state to serve that sentence.
The Framework Decision facilitates transfers of sentenced persons through extending the principle of mutual recognition, whereby EU Member States agree to recognise one another’s laws or decisions, to judgments in criminal matters imposing prison sentences. The Framework Decision replaces the Convention in respect of transfers between Member States.
The Framework Decision provides for transfers to be made without the consent of the sentenced person or the executing state under certain circumstances, including where the person is transferred to the Member State of the person’s nationality where the person lives.
Ireland is obliged to give effect to the Framework Decision.
Application of Act
The provisions of the Act will apply to offences committed both before and after its commencement. There is a presumption that an executing state will comply with the requirements of the Framework Decision unless the contrary is shown.
The Minister for Justice is the competent authority in the State for the purposes of the 2023 Act and the Framework Decision, except in respect of the matters specified, where this role is assigned to the court.
There is a procedure for the manner in which documents related to the 2023 Act shall be transmitted to the competent authority of an executing state or an issuing state for the purposes of the 2023 Act. It also makes evidential provisions in respect of such documents.
State as Issuing State
Application to forward judgment
The Act sets out who can make an application to the Minister of Justice for a judgment to be forwarded. Such an application may be made by the sentenced person or by an appropriate person, on behalf of the sentenced person, or by the competent authority of the executing state which would be responsible for the enforcement of the judgment. The Minister is to consider the forwarding of a judgment on his or her own initiative.
Information to be provided to notification parties
There are notification requirements in respect of an application. It provides for the parties the Minister must notify on receipt of an application to forward a judgment and the information to be provided to such parties.
Opinion of sentenced person
Where a sentenced person is in the State, the Minister must ensure that they are given the opportunity to provide an opinion in respect of an application. An appropriate person to give consent on behalf of the sentenced person should that person be incapable of doing so. The opinion is to be provided to the executing state.
Consent of sentenced person
The Act sets out the requirements in respect of the consent of the sentenced person to the forwarding of a judgment.
The consent of the sentenced person is required unless:
- The person is a national of the executing state and lives in that state,
- the person will be sent to the executing state upon release in accordance with an order consequential to the judgment, or
- the person has fled to the executing state.
The determination of whether a person lives in the executing state is made based on the habitual residence of the person and on his or her family, social or professional ties with that state.
An appropriate person is to give consent on behalf of the sentenced person should that person be incapable of doing so.
Consent of executing state
The Act sets out the requirements in respect of the consent of the executing state to the forwarding of a judgment to that state.
A judgment may be forwarded without the consent of the competent authority of the executing state where:
- the person is a national of the executing state and lives in that state,
- the person is a national of the executing state and will be sent to the executing state upon release in accordance with an order consequential to the judgment.
A judgment may be forwarded with the consent of the executing state where the circumstances above do not apply.
Consultation with executing state
There is consultation between the Minister and the competent authority of the executing state prior to a decision to forward a judgment and for the consideration of a reasoned opinion received from the executing state.
Decision to forward judgment
A judgment may be forwarded only where the Minister is satisfied that the enforcement of the sentence by the executing state would facilitate the sentenced person’s social rehabilitation and successful reintegration into society. The person must also be in the State or the executing state, and the provisions in respect of consultation and consent must have been satisfied.
A judgment may only be forwarded to one executing state at any one time. Provision is made to allow the Minister to invite or otherwise consider submissions by such persons as the Minister considers appropriate.
There is a procedure for the forwarding of a judgment by the Minister to the executing state.
Provisional arrest where sentenced person in executing state
The Minister may request the executing state to, when the sentenced person is in that state, provisionally arrest the person pending the decision of the executing state to recognise the judgment and enforce the sentence.
Communications with executing state after judgment forwarded
There is provision for communications with the executing state after the judgment has been forwarded. In particular, it provides that after the forwarding of a judgment, the Minister shall, upon request, provide a translation of the judgment and additional information as appropriate. Provision is also made for the consideration of a reasoned opinion from an executing state where prior consultation has not taken place.
Consent of Minister to partial recognition and enforcement by executing state
The Minister may consent to the partial recognition and enforcement of the sentence. Such a partial recognition may not aggravate the duration of the sentence.
Where the consent of the sentenced person is required, such consent may be withdrawn prior to a decision by the executing state to recognise the judgment. Provision is made for an appropriate person to withdraw consent on behalf of the sentenced person should that person be incapable of doing so.
There is provision for the issue of a warrant for the transfer of a sentenced person out of the State and the effects of such a warrant. The Minister may issue a warrant for the transfer of the sentenced person after the executing state has notified the State of his or her decision to recognise a judgment; this warrant may be revoked or varied by the Minister at any time before the transfer.
Transfer of sentenced person
The 2023 Act provides for the transfer of the person and sets out the relevant time periods for transfer. The sentenced person should be transferred to the executing state within 30 days of receiving notification of the decision to recognise the judgment. Should this not occur due to exceptional circumstances, a revised date shall be agreed between the Minister and the executing state.
Transfer of enforcement of sentence
The sentence shall cease to be governed by the law of the State once the sentenced person has been transferred into the custody of an authorised person of the executing state, or in the case where the sentenced person is in the executing state, from the date of when the decision has been recognised. If the sentenced person escapes after transfer has taken place, the responsibility for the enforcement of the sentence reverts to the State.
Continuation in effect of original order
The original order of detention in the State shall continue to authorise the detention of the sentenced person should the enforcement of the sentence revert to the State. The Minister may vary or cease the order at any point after the sentenced person has been removed from the State.
Where a sentenced person escapes custody in the executing state, the term of their sentence shall be suspended for the period of which they are unlawfully at large.
Arrest of sentenced person following escape from custody in executing state
There is provision for the arrest of a sentenced person who has escaped and is unlawfully at large in the State. On arrest, the person will be brought before the court for the enforcement of the original sentence. The court may vary the original order imposing the sentence to take into account relevant matters including time served.
Rule of specialty (Part 2)
The court, may on receipt of a request from the executing state and on application by the Minister, to give consent to proceedings being brought against and/or a custodial sentence being imposed upon a person in the executing state for an offence other than that for which they have been transferred. The Act sets out the information required to be submitted with the request from the executing state.
Withdrawal of Framework Decision Certificate
The Minister may withdraw a Framework Decision Certificate prior to the transfer of the enforcement of the sentence.
Cessation of enforcement of sentence
The Minister shall notify the executing state where a sentence ceases to be enforceable due to the granting of a pardon, a declaration of a miscarriage of justice or where the sentenced person has become immune to prosecution in relation to the forwarded judgment.
State as Executing State
Consent to forwarding judgment
The Act sets out the conditions under which the Minister may provide his or her consent for a judgment to be forwarded from an issuing state (where such consent is required). The Minister may give consent where satisfied that:
- the sentenced person is in either the State or the issuing state.
- the enforcement of the sentence in the State would facilitate the sentenced person’s social rehabilitation and successful reintegration into society
Provision of reasoned opinion to issuing state
The Act provides for the issue of a reasoned opinion to the issuing state where the Minister believes that the enforcement in the State of a sentence would not facilitate the social rehabilitation and social reintegration of the sentenced person.
If the Minister has been consulted by the issuing state prior to the forwarding of the judgment then he or she may provide this opinion at that point. If not, then the Minister may provide the opinion after the judgment has been received.
Forwarding of judgment to Minister
There is a procedure for the forwarding of a judgment and Framework Decision Certificate to the State. The Minister, on his or her own initiative, or at the request of the sentenced person, may request a judgment to be forwarded to the State. Such a request shall not create an obligation to recognise the judgment.
If an issue has arisen in respect of the content or completeness of the Framework Decision Certificate, the Minister shall notify the issuing state and request it be corrected within a reasonable time period.
When the Minister is satisfied that the Framework Decision Certificate has been properly completed, he or she shall certify that the Certificate has been forwarded and that the relevant requirements have been met. The Minister must then, where possible, notify the sentenced person of the Certificate and make an application to the court in respect of the recognition of the judgment.
Provisional arrest where sentenced person in State
There is provision for the provisional arrest of a sentenced person in the State, pending either the receipt of the judgment and Framework Decision Certificate, or the recognition thereof.
A request for provisional arrest may be made by the issuing state to the Minister, and the Minister has a discretion as to whether to accede to this request. An arrest warrant may be issued by the court only where the issuing state has requested provisional arrest and where the Minister has agreed.
Power of adjournment and remand
There is provision for the court to adjourn proceedings and remand the sentenced person in custody and/or on bail as appropriate.
Application for recognition and enforcement
There is a process by which the Minister causes an application to be made to the appropriate court for the judgment to be recognised, and for the time limits applicable. An application may be made ex parte unless the court directs that it is in the interests of justice that it be made on notice to the sentenced person.
A decision is to be made within 90 days from the forwarding of the judgment, subject to extensions provided for and the exceptional reasons provided. Where an application under the section is granted, the court shall take all such measures as are necessary to enforce the sentence.
Grounds for refusal to recognise and enforce
The 2023 Act sets out the grounds upon which the court may refuse to grant an application for the recognition of a judgment and enforcement of a sentence. In line with the requirements of the Framework Decision, all grounds are optional: the court is not obliged to refuse to recognise a judgment where one or more of them apply.
The grounds include:
- the sentenced person is not in the issuing state or in the State
- where consent of either the Minister and/or the sentenced person is required, such consent has not been given
- the enforcement would be contrary to the principle of ne bis in idem
- the offence in the issuing state does not correspond to an offence under the law of the State
- the sentenced person is immune from prosecution under the law of the State for the act(s) constituting the offence
- the corresponding offence could not be proceeded against in the State by reason of the sentenced person’s age at the time of the offence
- there is less than six months of the term remaining to be served
- the requirements regarding in absentia decisions were not met
- a partial recognition has not been agreed where required
- the judgment provides for medical or therapeutic treatment which would be impossible or impractical for the State to provide
- in exceptional circumstances, and having regard to the specific circumstances of the case, and to whether a major or essential part of the offence to which the judgment relates was committed in the
- issuing state, the judgment relates to an offence the major or essential part of which under the law of the State is regarded as having been committed wholly or for a major or essential part within the State
- consent has not been given to proceedings under the rule of specialty where required
- there are reasonable grounds for believing that the sentence was imposed for the purpose of punishing him or her on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or where recognition may prejudice the sentenced person’s position for any of these reasons
Where certain specified grounds for refusal to recognise exist, the court may request additional documentation or information from the issuing state, and the Minister shall notify this request to the issuing state. There are additional provisions for revenue offences where differences may arise in the structure of taxes, etc. between states.
Recognition may be granted notwithstanding defects in the documentation supporting the application provided that such recognition would not cause injustice to the sentenced person.
There may be consideration of exceptional circumstances in respect of recognition where the person has less than six months of the sentence remaining to be served.
Partial recognition and enforcement
The court may consider recognition of the judgment in part where recognition in full is not possible. There is consultation with the issuing state in order to find an agreement on the partial recognition.
There is provision for the adaptation of the sentence where the sentence imposed in the issuing state is incompatible with the law of the State. An order for adaptation may be made at the time of the application or at any other time, and may be made on application by the Minister or on the appropriate court’s own motion. That adaptation may be considered ex parte unless it is in the interests of justice that the sentenced person be put on notice.
There is power for the court to adapt the legal nature of the sentence to that of a sentenced prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed. An adaptation must, as far as practicable, correspond to the legal nature of the sentence imposed in the issuing state and must not aggravate it or exceed the maximum penalty prescribed by the law of the State.
The adapted sentence must correspond in nature and duration, as far as is practicable, to the sentence imposed in the issuing state. The adapted sentence shall not exceed the maximum penalty prescribed by the law of the State for a similar offence.
Where the duration of the sentence is greater than the maximum allowed under the law of the State, the duration will be adapted to the maximum allowed.
The enforcement of a sentence is not rendered unlawful by it not having been adapted, and that enforcement may continue notwithstanding that an application is made for it to be adapted.
Enforcement of sentence in respect of fewer offences
A sentence will not be deemed an aggravation of a sentence by virtue of it being enforced in respect of fewer offences than for which the original sentence was imposed in the issuing state by virtue of either partial recognition or adaptation.
Warrant on foot of recognition
The court may issue a warrant for the arrest and/or detention of the person as appropriate, pending the issue of an order below. The court may make an order for the purpose of enforcement of the sentence committing the sentenced person to a place of detention.
Where the person is to be arrested or brought into the State by virtue of the recognition of the judgment, the order must be made within 21 days of the person being arrested or brought into the State. This period may be extended under where the court is unable to make the order within the period allowed.
Consideration of the order is to be made on notice to the sentenced person.
There are provisions for determining the duration of the sentence by the court, including consideration of time already served in the issuing state and any deductible period relevant to the sentence. By virtue of the definition of “deductible period” this is determined by the issuing state.
The court shall not take into account the provisions of law of the issuing state under which the person is entitled to early or conditional release as these are matters in respect of the administration of the sentence and are determined by the law of the State.
Where a sentence is part-suspended, the court shall exclude the part of the sentence that is suspended in determining the period the person is to be detained.
Without prejudice to the generality of the above provisions of the law of the issuing state that would grant an entitlement to release at a specified point of a sentence, under license or otherwise, are considered to be relating to the administration of the sentence and are not part of the legal nature or duration of the sentence.
The effect of a committal order may be to authorise the detention of a person for a longer period than they might have served had they remained in the issuing state. Such a possibility is a necessary consequence of the application of the law of the State rather than that of the issuing state in relation to the administration of the sentence.
Effect of committal order
A committal order shall authorise the continued enforcement of a sentence imposed by an issuing state, and has the same force and effect as either, as appropriate:
- an order imposing imprisonment following conviction
- an order committing a person to a designated centre
- an order committing a person to a children detention school
Without prejudice to the generality of the above certain provisions in respect of the administration of sentences apply in respect of the sentence.
A person shall not be entitled to bring an appeal in the State against the conviction or the sentence. All proceedings, including appeals, must be concluded before a judgment is forwarded. Any further review of the conviction or sentence remains the responsibility of the issuing state.
Revocation and variation of warrants and orders
A court may revoke or vary the terms of a warrant. This may be done upon application by the Minister. The sentenced person may also request the Minister to make an application.
Rule of specialty (Part 3)
There is a rule of specialty in respect of inward transfers. It provides that a sentenced person shall not be proceeded against for an offence other than the sentence for which he or she has been transferred unless the conditions set out in the section are met.
A request may be issued by the court for the consent of the issuing state to proceed and for the Minister to facilitate the communication of this request.
Transfer to State of enforcement of sentence
The Act determines the point in time at which the enforcement of the sentence shall be governed by the law of the State:
- if the person is in the State, from the making of an order;
- if the person is subject to warrant, the date of its issuance;
- if transferred to the State, the time they are delivered into the custody of the State.
Where a sentenced person escapes from custody in the State and has not been retaken, the enforcement of the sentence shall revert to the issuing state upon notification to the issuing state from the Minister.
Cessation of enforcement of sentence by State
There are provision for circumstances where the enforcement of the sentence ceases. These include where a person has been granted a pardon or amnesty, or has otherwise become immune to prosecution or punishment, or where due to a decision on the judgment or sentence by the issuing state, the sentence is or will become unenforceable. Where such circumstances arise, the Minister shall inform the relevant authority and the person shall be released at the appropriate point.
Notification is to be given by the Minister to the issuing state under the circumstances as set out.
There are identification procedures and powers in respect of persons. There is provision for for transit through Member States which are neither the issuing nor executing state.