Transfer of Execution of Sentences Act 2005

1. Interpretation.

1.—(1) In this Act, except where the context otherwise requires—

F1["Act of 2006" means theCriminal Law (Insanity) Act 2006;]

“Additional Protocol” means the Additional Protocol to the Convention on the Transfer of Sentenced Persons done at Strasbourg on 18 December 1997;

F1["children detention school" has the same meaning as it has insection 3(1)of theChildren Act 2001;]

F1["committal order" has the meaning assigned to it bysection 10(1);]

F1["deductible period", in relation to a sentenced person, means—

(a) the period spent by the person in custody in the State on foot of a warrant issued undersection 8or9awaiting the making of a committal order, and

(b) the period (if any) of the sentence indicated by a sentencing country to be deducted from the total length of the sentence—

(i) in respect of an amnesty, pardon, clemency or other such decision granted by the sentencing country in relation to the sentence, and

(ii) in respect of any other reduction (including a period of remission of sentence) in relation to the part of the sentence which has been served by the person in that country;]

F1["designated centre" has the same meaning as it has in section 1 of the Act of 2006;]

“designated country” has the meaning assigned to it by section 5;

“Minister” means the Minister for Justice, Equality and Law Reform;

F2[…]

F1["place of detention" means—

(a) a prison,

(b) a designated centre, or

(c) a children detention school;]

F1["prison" means a place of custody (other than a Garda Síochána station) administered by or on behalf of the Minister and includes a place—

(a) provided undersection 2of thePrisons Act 1970, and

(b) specified undersection 3of thePrisons Act 1972;]

“Schengen Convention” means the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders done at Schengen on 19 June 1990;

F3["sentence" means a punishment or measure involving deprivation of liberty ordered by a court or tribunal for a limited or unlimited period of time on account of a criminal offence and includes a punishment or measure that includes a limited or unlimited period of time that is served otherwise than in custody;]

“sentenced person” means a person on whom a sentence has been imposed in the territory of a designated country;

“sentencing country” means, in relation to a person on whom a sentence has been imposed, the designated country in which that sentence was imposed.

(2) In this Act—

(a) a reference to a section, is a reference to a section of this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c) a reference to any enactment is a reference to that enactment as amended, extended or adapted, whether before or after the passing of this Act, by or under any subsequent enactment.

2. Amendment of section 11 of Transfer of Sentenced Persons Act 1995 (Annual report to Houses of Oireachtas).

2.—Section 11 of the Transfer of Sentenced Persons Act 1995 is amended by the deletion of “including information in relation to each application made under this Act” and the substitution therefor of “and the Transfer of Execution of Sentences Act 2005, including information in relation to each application made under this Act or that Act”.

3. Application of Act.

3.—This Act applies in relation to sentences, whether imposed before or after its passing.

4. Corresponding offences.

4.—For the purposes of this Act—

(a) an offence under the law of the sentencing country corresponds to an offence under the law of the State where the act or omission constituting the offence under the law of the sentencing country would, if committed in the State, constitute an offence under the law of the State, and

(b) an offence under the law of the State corresponds to an offence under the law of the sentencing country where the act or omission constituting the offence under the law of the State would, if committed in the sentencing country, constitute an offence under the law of the sentencing country.

5. Designated countries.

5.—(1) The Minister for Foreign Affairs may by order designate for the purposes of this Act—

(a) a country that has ratified, accepted, approved or acceded to the Additional Protocol (including a country that has ratified, accepted, approved or acceded to the Additional Protocol (other than Article 3)),

(b) a country that has ratified or acceded to the Schengen Convention, or

(c) a country other than a country to which paragraph (a) or (b) applies that has given effect under its laws to the provisions of Chapter 5 of Title III of the Schengen Convention or Article 2 of the Additional Protocol,

and a country that for the time being stands so designated is hereafter in this Act referred to as “a designated country”.

(2) The Minister for Foreign Affairs may, by order, amend or revoke an order under this section, including an order under this subsection.

(3) An order under this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas.

6. Request for execution of sentence in designated country.

6.—(1) Subject to subsection (2), where a person in respect of whom a sentence has been imposed in the State flees from the State before he or she has—

(a) commenced serving that sentence, or

(b) completed serving that sentence,

and who is, for the time being, in a designated country, the Minister may request the person in the designated country concerned who performs functions the same as or similar to those performed by the Minister under this Act to consent to and arrange for the first-mentioned person's serving the sentence or remainder of the sentence, as the case may be, in that country.

(2) The Minister shall not make a request under subsection (1) unless—

(a) under the law of the designated country the person is, or is deemed to be, a national of the designated country,

(b) the order imposing the sentence is final, and

(c) subject to subsection (3), the term of the sentence concerned is not less than 6 months, or where the person has already served part of the sentence concerned, at the time of his or her fleeing the State there was not less than 6 months of the sentence remaining to be served.

(3) The Minister may, in relation to a person—

(a) sentenced to less than 6 months imprisonment, or

(b) who has less than 6 months remaining to serve of a sentence,

make a request under subsection (1), if he or she considers that exceptional circumstances exist which warrant the person serving the sentence or remainder of the sentence, as the case may be, in the designated country concerned.

7. Request for execution of sentence in State.

7.—(1) Subject to subsection (2), the Minister may, upon receipt of a request in writing from a sentencing country to consent to the execution in the State of a sentence imposed in the sentencing country, or part of a sentence so imposed, on a person who fled to the State before he or she—

(a) commenced serving that sentence, or

(b) completed serving that sentence,

give such consent.

(2) The Minister shall not give his or her consent under subsection (1) unless—

(a) the person is an Irish citizen or, where the person is not an Irish citizen, the person has, in the opinion of the Minister, close ties with the State,

(b) the order imposing the sentence in the sentencing country is final,

(c) subject to subsection (3), the term of the sentence concerned is not less than 6 months, or where the person has already served part of the sentence concerned, at the time of his or her fleeing to the State there was not less than 6 months of the sentence remaining to be served,

(d) under the law of the sentencing country, the offence in respect of which the sentence was imposed corresponds to an offence under the law of the State, and

(e) the Minister is of the opinion that, having regard to all the circumstances, it would be appropriate for him or her to give such consent.

F4[(2A) For the purposes ofsubsection (2)(d)andsection 8(2)(b)(iv), where the sentence imposed in a sentencing country is in relation to more than one offence, the requirement set out in those provisions shall be deemed to be satisfied where any one or more of the offences for which the sentence was imposed corresponds to an offence under the law of the State.]

(3) The Minister may, in relation to a person—

(a) sentenced to less than 6 months imprisonment, in the sentencing country, or

(b) who has less than 6 months remaining to serve of a sentence imposed in the sentencing country,

give his or her consent under subsection (1), if he or she considers that exceptional circumstances exist that warrant the person serving the sentence or remainder of the sentence, as the case may be, in the State.

8. Consent to request under section 7.

8.—(1) The Minister, or a person authorised under section 15 of the Ministers and Secretaries Act 1924 to authenticate the seal of the Minister, shall, upon the giving by the Minister of his or her consent under section 7, certify in writing that, in relation to a sentenced person—

(a) a request has been received under that section, and

(b) the Minister has given his or her consent to that request,

and the Minister shall, as soon as practicable thereafter, apply, or cause an application to be made, to the High Court for F5[the continued enforcement of the sentence (in its legal nature and duration) and] a warrant authorising the arrest of the sentenced person concerned.

(2) Upon an application under subsection (1), the High Court shall issue a warrant authorising the arrest of the sentenced person concerned F5[for the purpose of the enforcement of the sentence] if—

(a) a certificate to which this section applies is produced to the court, and

(b) it is satisfied that—

(i) the person is an Irish citizen or, where the person is not an Irish citizen, the person has, in the opinion of the Minister, close ties with the State,

(ii) the order imposing the sentence in the sentencing country is final,

(iii) subject to section 7(3), the term of the sentence concerned is not less than 6 months, or where the person has already served part of the sentence concerned, at the time of his or her fleeing to the State there was not less than 6 months of the sentence remaining to be served, and

(iv) the offence under the law of the sentencing country in respect of which the sentence was imposed corresponds to an offence under the law of the State.

F5[(2A) Where the High Court issues a warrant undersubsection (2), the court shall take all such measures as are necessary to enforce the sentence and, in particular, may make an order undersection 10B(3)or(5)or both adapting the sentence.]

(3) A certificate to which this section applies shall include a statement of—

(a) the name of the sentenced person in relation to whom a request under section 7 has been made,

(b) the sentence imposed in relation to him or her in the sentencing country,

(c) the period of the sentence so imposed remaining to be served, where the person has already served part of the sentence, and

(d) the address of the place in the State at which the person is for the time being residing (if that is known).

(4) A certificate to which this section applies shall, unless the contrary is proved, be evidence of the matters specified in the certificate.

(5) A warrant issued under this section may be executed by any member of the Garda Síochána in any part of the State and may be so executed notwithstanding that it is not in the possession of the member when he or she executes the warrant, and the warrant shall be shown to and a copy thereof given to the person arrested at the time of his or her arrest or, if the warrant is not then in the possession of the member, not later than 24 hours after his or her arrest.

(6) The Minister may at any time apply to the High Court for an order varying the terms of, or revoking, a warrant issued under this section.

(7) The High Court may, upon an application under subsection (6), revoke or vary a warrant issued under this section if it is satisfied that the revocation or variation is necessary in order to ensure compliance with the provisions of this Act.

(8) A person arrested under a warrant issued under this section shall, as soon as may be after his or her arrest, be brought before the High Court.

9. Provisional arrest.

9.—(1) The High Court may, upon the sworn information of a member of the Garda Síochána not below the rank of inspector given with the consent of the Minister, issue a warrant for the arrest of any person if it is satisfied that—

(a) a request for the provisional arrest of that person has been made on behalf of a sentencing country, and

(b) in relation to the request, there has been compliance with this section.

(2) A request for the provisional arrest of a person made on behalf of a sentencing country shall state—

(a) the name, and date and place of birth, of the person concerned,

(b) the address of the place in the State at which the person is for the time being residing (if that is known),

(c) the nature of the offence, the circumstances in which the offence was committed and the time at which and place where the offence was committed,

(d) the nature, duration and date of commencement of the sentence (or, where the sentenced person fled from the sentencing country before he or she began serving the sentence, the date on which the sentence should have commenced), and

(e) where the person fled the sentencing country after having served part of the sentence but before he or she had completed serving the sentence, the period of the sentence that he or she served.

(3) A warrant issued under this section may be executed by any member of the Garda Síochána in any part of the State and may be so executed notwithstanding that it is not in the possession of the member when he or she executes the warrant, and the warrant shall be shown to and a copy thereof given to the person arrested at the time of his or her arrest or, if the warrant is not then in the possession of the member, not later than 24 hours after his or her arrest.

(4) A person arrested under a warrant issued under this section shall, as soon as may be after his or her arrest, be brought before the High Court and the High Court shall, unless the certificate to which section 8 applies is produced to the court, remand the person in custody or on bail pending the production to it of that certificate, and for that purpose the High Court shall have the same powers of remand as it would have if the person were brought before it charged with an indictable offence.

(5) If a certificate to which section 8 applies is not produced in accordance with subsection (4) before the expiration of the period of 18 days from the date on which the person is arrested under a warrant issued under this section, the person concerned shall be released from custody forthwith.

(6) If, in relation to a person who has been released in accordance with subsection (5), a request to which section 7 applies is received by the Minister, an application may be made under and in accordance with section 8(1) for a warrant authorising the arrest of that person.

(7) Where a warrant authorising the arrest of a person is issued under this section, then in any subsequent proceedings it shall be presumed unless the contrary is proved that a request for the provisional arrest of that person has been made by the sentencing country concerned.

9A. F6[Identification procedures for purpose under Act

9A.—(1) Where a member of the Garda Síochána arrests a person under any power conferred by this Act, the member of the Garda Síochána may, in order to assist in verifying or ascertaining the identity of the person for any purpose under this Act—

(a) take, or cause to be taken, his or her fingerprint,

(b) take, or cause to be taken, his or her palm print, and

(c) photograph him or her or cause him or her to be photographed.

(2) Where a fingerprint, palm print or photograph taken pursuant tosubsection (1)is lost or damaged, or is otherwise unsuitable for use for the purpose referred to in that subsection, it may be taken on a second or any further occasion.

(3) The powers conferred bysubsection (1)shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of inspector.

(4) A member of the Garda Síochána may, where a person fails or refuses to allow his or her fingerprint, palm print or photograph to be taken pursuant tosubsection (1), use such force as he or she reasonably considers necessary to take the fingerprint, palm print or photograph or to cause the photograph to be taken.

(5) The powers conferred bysubsection (4)shall not be exercised except where authorised by a member of the Garda Síochána not below the rank of superintendent.

(6) An authorisation pursuant tosubsection (5)may be given orally or in writing and if given orally shall be confirmed in writing as soon as practicable.

(7) Where a member of the Garda Síochána intends to exercise a power conferred bysubsection (4), he or she shall inform the person who fails or refuses to allow his or her fingerprint, palm print or photograph to be taken pursuant tosubsection (1)—

(a) of that intention, and

(b) that an authorisation to do so has been given pursuant tosubsection (5).

(8) A fingerprint, palm print or photograph taken pursuant tosubsection (4)shall be taken in the presence of a member of the Garda Síochána not below the rank of inspector.

(9) The taking of a fingerprint, palm print or photograph pursuant tosubsection (4)shall be recorded by electronic or similar means.