Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Act 2019

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Act 2019.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. (1) In this Act—

“Act of 2006” means the Criminal Justice Act 2006;

“appropriate court” means—

(a) where an application is made under section 23(1)(a) in relation to a judgment and, where applicable, the probation decision in respect of an offence which would, if dealt with under the law of the State, have been required to be tried by the Central Criminal Court, the High Court, and

(b) in any other case, the Circuit Court;

“Article 6 certificate” means the certificate—

(a) provided for in Article 6 of the Framework Decision, and

(b) the standard form of which is set out in Annex I to the Framework Decision;

“Framework Decision” means Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (the text of which Council Framework Decision 2008/947/JHA, as so amended, is set out for ease of reference in the Schedule);

“Member State competent authority”, in relation to a Member State (other than the State), means the authority designated by that Member State to be the competent authority in that Member State for the purposes of the Framework Decision;

“Minister” means the Minister for Justice and Equality;

“prescribed” means prescribed by regulations made by the Minister;

“probation measure” includes a probation period;

“section 2 of the Act of 1960” means section 2 of the Criminal Justice Act 1960.

(2) A word or expression that is used in this Act and is also used in the Framework Decision has, unless the context otherwise requires, the same meaning in this Act as it has in the Framework Decision.

3. Application of Act

3. F1[(1)] The provisions of this Act shall not apply in relation to a judgment given before the commencement of those provisions.

F1[(2) Nothing in this Act shall operate to prejudice—

(a) the power of the Minister under Part 2 of the Act of 2023 to forward a judgment (within the meaning of that Act) to the competent authority of an executing state (within the meaning of that Act), and

(b) the power of the Minister to make an application under Part 3 of the Act of 2023 in respect of a judgment (within the meaning of that Act).

(3) In this section, "Act of 2023" means the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023.]

4. Designation of competent authorities

4. (1) Subject to subsection (2), the Minister is designated as the competent authority in the State for the purposes of the Framework Decision.

(2) The appropriate court is designated as the competent authority in the State for the purposes of—

(a) Article 14 of the Framework Decision (but excluding any provision of that Article relating to the revocation of the decision on conditional release), and

(b) Article 20 of the Framework Decision in so far as it relates to subsequent decisions referred to in Article 14 of the Framework Decision (but excluding any provision of either Article relating to the revocation of the decision on conditional release).

(3) For the avoidance of doubt, the Minister is not acting in his or her capacity as the competent authority in the State for the purposes of the Framework Decision in performing his or her functions under section 1(2), 5(1) or (3), 6 or 19(2) or (3).

5. Provisions supplementary to section 4

5. (1) The Minister may, by order, designate such persons as he or she considers appropriate to perform such functions for which the Minister is acting in his or her capacity as the competent authority in the State for the purposes of the Framework Decision as are specified in the order and different persons may be so designated to perform different functions for which the Minister is acting in such capacity.

(2) For so long as an order under subsection (1) remains in force, a reference in this Act to the Minister shall, in so far as it relates to the performance of a function specified in the order, be construed as a reference to the person designated by the order to perform the function concerned.

(3) The Minister shall, by notice in writing, inform the General Secretariat of the Council of the European Union of the making of an order under this section and of the names of the persons designated under the order.

6. Orders and regulations

6. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulation.

(3) Every order (other than an order under section 1(2) or an order of a court) and regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

7. Expenses

7. Any expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Issuing State is Ireland

8. Application of Part 2

8. This Part applies where the State is the issuing state.

9. Definitions

9.In this Part—

“community service order” has the meaning assigned to it by section 3 of the Criminal Justice (Community Service) Act 1983;

“Director of the Probation Service” has the meaning assigned to it by section 1 of the Criminal Justice (Community Service) Act 1983;

“judgment in the State” means—

(a) an order under section 99(1) of the Act of 2006—

(i) pursuant to which a natural person enters into a recognisance referred to in that section, and

(ii) that has a condition specified in it requiring that person to be under the supervision of the Probation Service,

(b) a community service order made in respect of a natural person,

(c) an order under section 1 of the Probation of Offenders Act 1907 pursuant to which a natural person enters into a recognisance referred to in that section where such recognisance contains the condition first-mentioned in section 2(1) of that Act by virtue of a probation order referred to in such section 2(1),

(d) a recognisance referred to in section 28(2)(a) of the Misuse of Drugs Act 1977—

(i) entered into by a natural person, and

(ii) that has a condition contained in it requiring that person to be under the supervision of the Probation Service,

(e) an order imposing a community sanction (within the meaning of section 115 of the Children Act 2001) on a natural person who is a child within the meaning of section 3 of that Act,

(f) a sentence involving post-release supervision imposed on a natural person under section 29(1) of the Sex Offenders Act 2001, or

(g) a sentence referred to in section 2 of the Act of 1960 imposed on a natural person who is, in respect of such sentence, the subject of a probation decision;

“probation decision”, in relation to a judgment referred to in paragraph (g) of the definition of “judgment in the State”, means a direction referred to in section 2 of the Act of 1960 pursuant to which the sentenced person is released from prison for a period which exceeds the remainder of the sentence of imprisonment referred to in such section 2 that would, but for such release, have to be served by the person;

“Probation Service” has the meaning assigned to it by section 1 of the Criminal Justice (Community Service) Act 1983;

“sentenced person”, in relation to a judgment in the State and, where applicable, the probation decision, means the natural person the subject of that judgment and, where applicable, that probation decision;

“subsequent decision”, in relation to a probation measure or alternative sanction imposed by a judgment in the State and, where applicable, the probation decision, means a decision—

(a) varying or revoking an obligation or instruction imposed by the probation measure or alternative sanction,

(b) in relation to a judgment which falls within paragraph (a) of the definition of “judgment in the State”, revoking the order concerned referred to in that paragraph,

(c) in relation to a judgment referred to in paragraph (g) of the definition of “judgment in the State”, revoking or varying the direction concerned referred to in section 2 of the Act of 1960, or

(d) in consequence of a failure by the sentenced person to comply with the probation measure or alternative sanction—

(i) enforcing a custodial sentence, or other measure involving the deprivation of liberty, imposed on the person, or

(ii) imposing a custodial sentence, or other measure involving the deprivation of liberty, on the person.

10. Request for forwarding judgment in State, etc., to Member State competent authority

10. (1) The Director of the Probation Service (within the meaning of section 1 of the Criminal Justice (Community Service) Act 1983) may make a request in writing to the Minister for the forwarding, in accordance with section 11, to a Member State competent authority of a judgment in the State and, where applicable, the probation decision in respect of the sentenced person.

(2) The sentenced person in respect of a judgment in the State may make a request in writing to the Minister for the forwarding, in accordance with section 11, to a Member State competent authority of that judgment and, where applicable, the probation decision.

(3) The sentenced person in respect of a judgment in the State may make a request in writing to the Minister for the forwarding, in accordance with section 11, to a Member State competent authority of that judgment and, where applicable, the probation decision notwithstanding that that Member State is not the Member State in which that person is lawfully and ordinarily residing as construed in accordance with section 11(10).

11. Forwarding of judgment in State, etc., to Member State competent authority

11. (1) On receipt of a request under section 10(1) or (2), the Minister may forward, in accordance with subsection (8), the judgment in the State and, where applicable, the probation decision to which the request relates to the Member State competent authority to which the request relates if the Minister is satisfied that the sentenced person—

(a) is lawfully and ordinarily residing in the other Member State,

(b) has returned, or wants to return, to that State, and

(c) one of the following has occurred:

(i) the ordinary time for bringing an appeal against the judgment has expired without any such appeal having been made;

(ii) such appeal has been withdrawn or abandoned;

(iii) on any such appeal, that judgment was upheld.

(2) On receipt of a request under section 10(3), the Minister may forward, in accordance with subsection (8), the judgment in the State and, where applicable, the probation decision to which the request relates to the Member State competent authority to which the request relates if the Minister is satisfied that—

(a) that Member State competent authority has consented to such forwarding, and

(b) one of the following has occurred:

(i) the ordinary time for bringing an appeal against the judgment has expired without any such appeal having been made;

(ii) such appeal has been withdrawn or abandoned;

(iii) on any such appeal, that judgment was upheld.

(3) (a) For the purposes of paragraph (c)(i) of subsection (1) or paragraph (b)(i) of subsection (2), the Minister may request the registrar or clerk of the court which gave the judgment in the State concerned to, where the ordinary time for bringing an appeal against the judgment has expired without any such appeal having been made, provide the Minister with a certificate signed by the registrar or clerk stating that the ordinary time for making an appeal against the judgment has expired without any such appeal having been made.

(b) For the purposes of paragraph (c)(ii) and (iii) of subsection (1) or paragraph (b)(ii) or (iii) of subsection (2), the Minister may request the registrar or clerk of the court to which an appeal against the judgment in the State concerned has been made to—

(i) advise the Minister whether—

(I) such appeal has been withdrawn or abandoned, or

(II) on such appeal, that judgment was upheld,

and

(ii) if the advice is that such is the case, provide the Minister with a certificate signed by the registrar or clerk stating that, as appropriate—

(I) such appeal has been withdrawn or abandoned, or

(II) on such appeal, that judgment was upheld.

(4) Subsection (5) applies if the Member State competent authority to which a judgment in the State and, where applicable, the probation decision has been forwarded under this section makes a request to the Minister to be provided with the judgment or a duly authenticated copy of the judgment.

(5) (a) The Minister shall comply with a request under subsection (4) as soon as is practicable.

(b) For the purposes of such compliance, the Minister may request the registrar or clerk of the court which gave the judgment in the State concerned to provide the Minister with that judgment or a duly authenticated copy of the judgment.

(6) The registrar or clerk of the court concerned the subject of a request under subsection (3) or (5)(b) shall comply with the request as soon as is practicable after he or she receives the request.

(7) The Minister shall, in deciding whether or not to forward under this section a judgment in the State and, where applicable, the probation decision to the Member State competent authority, have regard to the declarations made by the other Member State under Articles 5(4), 10(4) and 14(3) of the Framework Decision.

(8) Where the Minister has made a decision to forward under this section a judgment in the State and, where applicable, the probation decision to the Member State competent authority, the Minister shall—

(a) forward the judgment and, where applicable, the probation decision, accompanied by an Article 6 certificate (and, subject to subsection (11), a translation of the Article 6 certificate in a relevant language), signed by the Minister, directly to the Member State competent authority by any means capable of producing a record in writing under conditions allowing the Member State competent authority to establish the authenticity of the 2 (or, if applicable, 3 or 4) documents, and

(b) if the Member State competent authority makes a request to the Minister to provide the Member State competent authority with the original Article 6 certificate or original probation decision, provide the Member State competent authority—

(i) with that original Article 6 certificate or original probation decision, or

(ii) with a copy of that original Article 6 certificate or original probation decision certified by the Minister to be a true copy of that original.

(9) The Minister shall not forward under this section a judgment in the State and, where applicable, the probation decision together with the accompanying Article 6 certificate to more than one Member State competent authority at any one time.

(10) (a) Subject to paragraph (b), the sentenced person shall be deemed to be lawfully and ordinarily residing in another Member State if he or she were lawfully residing in that State immediately before the giving of the judgment in the State concerned.

(b) A period in which the sentenced person was remanded in custody, or serving a sentence of imprisonment or detention (in a children detention school within the meaning of section 3 of the Children Act 2001 or place provided under section 2 of the Prisons Act 1970), in the State shall be disregarded for the purposes of paragraph (a).

(11) The Minister is not required to forward a translation referred to in subsection (8)(a) of the Article 6 certificate concerned to the Member State competent authority if the Minister knows that the Member State competent authority does not require such translation.

(12) In this section, “relevant language”, in relation to a translation of an Article 6 certificate to be forwarded under this section to the Member State competent authority, means the official language or one of the official languages of the Member State.

12. Withdrawal of Article 6 certificate

12. (1) Where a judgment in the State and, where applicable, the probation decision has been forwarded under section 11 to a Member State competent authority, the Minister may, at the same time as such forwarding or subsequently, make a request in writing to the Member State competent authority to inform the Minister of the maximum custodial sentence, or other measure involving the deprivation of liberty, that could be imposed on the sentenced person if he or she fails to comply with the probation measure or alternative sanction concerned.

(2) Subsection (3) applies where the Minister—

(a) receives information pursuant to a request under subsection (1), or

(b) after a judgment in the State and, where applicable, the probation decision has been forwarded under section 11 to a Member State competent authority, receives notice of a decision by the Member State competent authority to make an adaptation, in accordance with Article 9 of the Framework Decision, to the probation measure or alternative sanction concerned.