The Transfer of Sentenced Persons Act makes provision for the transfer between the State and places outside the State of persons who are detained in prisons, hospitals and other institutions by order of courts in the exercise of criminal jurisdiction. It is made under the Council of Europe Convention on the Transfer of Sentenced Persons made in Strasburg 1983 as amended.
A sentenced person is a person on whom a sentence has been imposed in a State which has ratified the Convention. A sentence means any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a limited or unlimited time.
The person on whom a sentence has been imposed in the State who wishes to transfer out of the State to another Convention State in order to serve the balance of the sentence may apply to the Minister for a transfer. Where a person is incapable of making an application, a legal representative may make the application on his behalf.
Criteria Outwards Transfer
The Minister may grant an application, if he is satisfied that the following conditions has been fulfilled:
- that the sentenced person is for the purpose of the Convention, a national of the latter State;
- that the order under which the sentence concerned was imposed is final;
- that at the time of receipt of the application, the sentenced person has at least six months of the sentence left to serve, or the sentence is of indeterminate length;
- that the sentenced person consents in writing
- that the acts or omissions constituting the offence would if done in the latter State constitute an offence under that State;
- that the recipient State agrees to the transfer.
In exceptional circumstances, a transfer may be made where a person has less than six months left to serve.
The Minister may not grant an application unless he is satisfied that reasonable steps have been taken to inform the sentenced person in writing of
- the substance in so far as it is relevant to the persons case of the international arrangements in accordance with which it is proposed to transfer him
- the effect in relation to the person of the warrant which is proposed to issue in respect of him;
- the effect in relation to the person of so much of the law of the country to which he is to be transferred as has effect with respect to the transfer and the powers of the Minister.
If the Minister grants the application, he issues a warrant for the transfer of the sentenced person out of the State into the recipient State.
The legislation also deals with a transfer inwards. A sentencing state other than the State may request the Minister in writing to consent to the transfer into the State of a sentenced person on whom a sentence has been imposed in that State, in order to serve the balance of the sentence in the State.
The Minister may consent to a request if he is satisfied the following conditions apply:
- that the sentenced person is under the Convention a national of the State (which includes having close ties with the State);
- that the order is final,
- that at least six months is left to run,
- that the sentenced person consents in writing;
- that the acts concerned are offences under the law of the State.
Similar provisions to those above are required in relation to informing a sentenced person of the
- substance of the international arrangements,
- the effect of the warrant,
- the effect in relation to the person of the law relating to his detention under the warrant and
- the Minster’s powers.
Provision is made for issue of a warrant inwards to facilitate reception of the person into prison in the State. The Minister has power to vary or revoke a warrant. In the case of a transfer inwards, an application is made to the High Court to revoke the warrant. The High Court may make an application as it considers appropriate.
Flight to Other Designated State
Where a person in respect of whom a sentence has been imposed, flees from the State before he has commenced serving the sentence or completed serving that sentence and he is for the time being in a designated country, the Minister may request the person in the designated country who performs functions of the same type, to consent to and arrange for the first mentioned person serving the sentence or the remainder of the sentence, in that country.
The Minister may not make a request unless under the law of the other country
- the person is deemed a national of that county
- the order imposing the sentence is final
- the term of the sentence is not less than six months or
- if he has already served part of it, there not less than six months left.
Flight to Ireland
An equivalent request can be made inwards from a sentencing country to consent to the execution in the State of a sentence imposed in the sentencing country on a person who has fled to the State before serving that sentence or completing serving that sentence.
The Minister may give the requisite consent. He may only give requisite consent
- if the person is an Irish citizen or in the opinion of the Minister has close ties with the State.
- the order imposing the sentence and the sentencing country is final.
- there is at least six months left (generally) and
- the law of the sentencing country has an offence corresponding to a law in respect of which the sentence imposed corresponds with an offence under the law of the State and
- the Minister believes that it is appropriate to give such consent.
The High Court upon a sworn information of a member of An Garda Síochána not below the rank of Inspector people, given with the consent of the Minister may issue a warrant for the arrest of any person, if it is satisfied that a request for the provisional arrest of that person has been made on behalf of a sentencing country and in relation to the request, there has been compliance with the statutory requirements.
A warrant issued may be executed by a member of An Garda Síochána in any part of the State. A person arrested is brought before the High Court and unless the certificate mentioned below is produced, may remand the person in custody pending the application for the certificate. If the certificate is not produced, before the expiration of 18 days, the person must be released.
The Minister may issue a certificate in relation to a sentenced person certifying that a request has been received and the Minister has given his consent to the request. On application, the High Court shall issue a warrant authorising the arrest of sentenced person if a certificate is produced to the court and it is satisfied that conditions equivalent to the above are complied with.
The High Court may where a person is brought before it above, make an order committing the person to prison for a period equal to in the case of a person who has fled from the sentencing country, the period of the sentence less the deductible period and in the case of a person who served part of the sentence concerned but fled from the sentencing country, the period that remains unserved less the deductible period.
The High Court shall not make an order, unless the Minister has given consent in relation to the person concerned. Where a person was sentenced in a sentencing country for a sentence greater than the maximum term, would have applied if he was convicted in the State, the High Court may commit the person for a reduced period to reflect this lesser period.
The deductible period means the period spent by the person in custody pending the making of the order, and any part of the term of the sentence under the law of the sentencing country a person is not required to serve.
Operation of Act
The Minister shall not without good reason discriminate between applicants on the ground of gender, marital or parental status, racial origin, political opinions, religious or other beliefs, health or sexual life, taking account the operational requirements of the prison and the welfare of the applicant.
The Minister is to report to the Houses of the Oireachtas on the operation of the legislation annually.
The Transfer of Execution of Sentences Act 2005 gives effect to an additional protocol to the Convention on the transfer of sentenced persons made in Strasburg 1997. The Minister may designate countries for the purpose of the Act which have ratified the additional protocol.