The main purpose of the Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020 to transpose Council Framework Decision 2009/829/JHA on the application of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. T
The effect of the Act is to provide for an Irish resident who is charged with an offence while in another Member State to have their bail conditions monitored in the State as opposed to the person being remanded in custody. Similarly, it will allow a resident of another Member State who is charged with an offence while in the State to be granted bail on condition that their bail is monitored in the Member State in which the person is legally and ordinarily resident.
The Central Authority in the State is to forward documents or information required under the Act to the competent authority in another Member State directly and by a means that can produce a record in writing of the document or information and that allows the competent authority to establish the authenticity of the document or information. The provisions of the Act apply to offences committed before or after the commencement of the Act.
The Minister for Justice and Equality is the Central Authority in the State for the purposes of the Act and allows the Minister to designate persons by order to carry out the functions of the Central Authority under the Act.
The Minister for Justice and Equality may make regulations providing for any matter referred to in the Act as prescribed or to be prescribed.
Issuing State is Ireland
Part 2 applies when the supervision decision is made by an Irish court, i.e. where the State is the issuing state.The issuing state is to consult with the executing state before making a supervision decision, during monitoring of the decision and when a breach of the conditions of the order occurs. The Central Authority is to bring any risk to the victim which is made known to it to the attention of the court.
Power of court to make supervision decision
The court may make a supervision decision subject to certain requirements. These requirements are that the person is charged with an offence which carries a possible sentence of 12 months imprisonment or more, that they are lawfully and ordinarily resident in another Member State and the person must make an application for a supervision decision.
In addition, the other Member State must agree to recognise the decision. The making of a supervision decision also incorporates entering into a recognisance and the inability to make a supervision decision if bail has been refused on an existing ground.
Application for supervision decision
The Act sets out the process for a person who has already been granted bail in the State to make an application to the court for a supervision decision subject to that person being legally and ordinarily resident in another Member State and wanting to return to that Member State pending the trial of the offence.
The Central Authority is to notify the competent authority in the other Member State of an appeal of the above decision to the High Court.
The 2020 Act sets out the procedure to be followed for the forwarding of a supervision decision by the Central Authority to the competent authority in the other Member State.
Response of competent authority in executing state to supervision decision
The 2020 Act provides for the potential responses of the other Member State competent authority to a forwarded supervision decision such as a delay in the decision making process, that the competent authority has adapted a supervision measure, of the maximum length of time that the Member State can monitor a supervision decision or that the competent authority will not agree to monitor the supervision decision.
It sets out the actions which may be taken by the Irish court subsequent to a response from the competent authority of the other Member State such as noting an adaption, modifying the supervision decision or revoking the supervision decision.
Decision of executing state to monitor supervision decision Section 16 The 2020 Act sets out the actions to be taken in the State once the other Member State competent authority has informed the Central Authority that it agrees to monitor the supervision decision. These actions include notifying the supervised person, taking of the relevant recognisance and the release of the person if he or she is in custody.
The Central Authority is to inform the court where it is notified by the other Member State competent authority that the supervised person has changed their address, that the person cannot be found in that state, that a legal remedy has been introduced against the decision to recognise the supervision decision in that state or of a breach of a supervision measure or other action that may require a subsequent decision to be made by the court.
The 2020 Act specifies the date that the supervision decision will expire, including in situations where it has been renewed, revoked or adapted. This section also provides for extensions of the monitoring period and allows the court to treat the person on appearance before the court following the expiration of the supervision decision as if that person had been on bail in the State.
Subsequent decisions in relation to supervision decision
The 2020 Act empowers the court to make a subsequent decision such as renewal of the supervision decision, revocation of the supervision decision or modification of a supervision measure and details the procedure for making such decisions.
The 2020 Act enables the court to revoke a supervision decision in certain circumstances such as where the person cannot be found in the other Member State, where the person has breached their supervision measures or that the Member State competent authority informs the Central Authority that it can no longer monitor the supervision decision.
The 2020 Act empowers the court to issue a warrant for the arrest of the supervised person where they fail to appear before the court following the expiration of the supervision decision or where the person fails to appear before the court following the revocation of the supervision decision.
Certain hearings before the court are to be held via live television link where the supervised person is in the other Member State.
Executing State is Ireland
The 2020 Act states that the provisions of Part 3 apply when a supervision decision is issued in another Member State and is forwarded to Ireland to be recognised, i.e. where the State is the executing state.
The Central Authority is to consult with the other Member State competent authority regarding the supervision decision which has or is to be forwarded. These consultations are to facilitate the preparation or forwarding of the supervision decision, the monitoring of the supervision decision or the making of a subsequent decision. This section also requires consultation where a serious breach of the supervision decision has been committed by the supervised person.
Supervision measures to which Part 3 applies
The 2020 Act lists the supervision measures or conditions which may be contained in a supervision decision for the purposes of Part 3 of the Act. These measures include obligations on the supervised person to keep the authority in the State informed of their place of residence in the State and any changes to that residence, to refrain from being in specified places at specified times or having contact with specified persons, to obey any relevant travel restrictions and to report to the authority in the State at specified times.
The 2020 Act specifies the procedures and requirements applying when a supervision decision is forwarded to the Central Authority in the State.
It sets out the grounds for refusal of the recognition and monitoring of a supervision decision in the State. These grounds include where the supervised person is not lawfully or ordinarily resident in the State, the supervised person does not wish to return to the State or that the necessary information received by the State is incomplete or does not relate to the supervision decision. A supervision decision will not be monitored in the State if the person to whom it relates is not a person who could be returned to the issuing state by way of a European Arrest Warrant or where the offence in the supervision decision does not correspond to an offence in the State.
Application to court for endorsement of supervision deci-
The Central Authority is to make an application to the court for the endorsement of a supervision decision as soon as may be once the supervision decision is received from the other Member State competent authority. This application must be made on notice to the supervised person.
The court to make an order endorsing the supervision decision if the court is satisfied that it meets the requirements for endorsement under this Part. If necessary the court may adapt a supervision measure in order to make it compatible with Irish law.
The court must make a decision on the endorsement of the supervision decision within 20 working days from the receipt of the decision by the Central Authority. It also specifies certain circumstances where this time limit may be extended.
The court is to send a certified copy of the endorsement order and the Article 10 certificate to the Central Authority, the supervised person and the superintendent of the Garda Síochána of the district where the supervised person is to reside when an endorsement order has been made.
The Central Authority to send the endorsement order or a certified copy of the endorsement order to the Member State competent authority as soon as practicable after the endorsement order has been made. The Central Authority, where the court has refused to endorse the supervision decision, is to send a notice stating the grounds for refusing to endorse the supervision decision.
The other Member State will retain competence for the renewal, modification or revocation of the supervision decision and details the actions to be taken if such a decision is made by the other Member State’s competent authority.
The 2020 Act provides for the extension of monitoring of the supervision decision if necessary and where requested by the other Member State.
Breach of supervision decision
The 2020 Act sets out the procedure to be followed where a supervised person breaches the supervision decision. Where a supervision decision has been breached the court shall send a notice of the breach to the Central Authority for forwarding to the competent authority in the other Member State. This section allows for a revocation of the endorsement order to be made under certain circumstances.
The 2020 Act empowers the court to revoke an endorsement order on information in writing and on oath from a member of the Garda Síochána that the supervised person cannot be found in the State.