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Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023

Type Act

Publication 2023-03-01

State In force

Source Irish Statute Book

Reform history JSON API

PART 1 Preliminary and General

1. Short title, collective citations and commencement

1. (1) This Act may be cited as the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023.

(2) The European Arrest Warrant Acts 2003 and 2012 and section 75 may be cited together as the European Arrest Warrant Acts 2003 to 2023.

(3) The Transfer of Sentenced Persons Acts 1995 and 1997 and Part 5 may be cited together as the Transfer of Sentenced Persons Acts 1995 to 2023.

(4) This Act shall come into operation on such day or days as the Minister may appoint by order or orders 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 1960” means the Criminal Justice Act 1960;

“Act of 1995” means the Transfer of Sentenced Persons Act 1995;

“Act of 2003” means the European Arrest Warrant Act 2003;

“Act of 2005” means the Transfer of Execution of Sentences Act 2005;

“Act of 2006” means the Criminal Law (Insanity) Act 2006;

“Act of 2019” means the Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Act 2019;

“appropriate court” means the High Court;

“children detention school” has the same meaning as it has in section 3(1) of the Children Act 2001;

“clinical director”, in relation to a designated centre, has the same meaning as it has in the Mental Health Act 2001;

“competent authority”, in relation to an executing state or issuing state, means the authority designated by the executing state or issuing state, as the case may be, to be the competent authority in that state for the purposes of the Framework Decision;

“court” means any court exercising criminal jurisdiction and includes a court-martial;

“designated centre” has the same meaning as it has in section 1 of the Act of 2006;

“Director General of the Irish Prison Service” means the person appointed by the Minister to the post of Director General of the Irish Prison Service;

“Director of a children detention school” means a person who has been appointed under section 180 of the Children Act 2001 and who is responsible for the immediate control and supervision of a children detention school;

“executing state” means the Member State to which a judgment is, or is to be, forwarded in accordance with Part 2 for the purposes of its recognition and enforcement in that state;

“Framework Decision” means Council Framework Decision 2008/909/JHA of 27 November 2008^3 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, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009^4 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 in the English language is for convenience of reference set out in the Schedule;

“Framework Decision 2008/947/JHA” means Council Framework Decision 2008/947/JHA of 27 November 2008^5 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 2009^6 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;

“Framework Decision Certificate” means the certificate provided for in Article 4 of the Framework Decision, the standard form of which is set out in Annex I to the Framework Decision;

“issuing state” means the Member State in which a judgment is delivered;

“judgment” means a final decision, direction or order—

(a) where Part 2 applies, of a court in the State, and

(b) where Part 3 applies, of a court in an issuing state,

imposing a sentence on a natural person and, unless otherwise specified, includes a record in writing of that decision, direction or order or a certified copy thereof;

“Member State” means—

(a) a state, other than the State, that is a Member State of the European Union, and

(b) a state that is declared under section 85 to be a Member State;

“Minister” means the Minister for Justice;

“place of detention” means—

(a) a prison,

(b) a designated centre, or

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

(a) a place provided under section 2 of the Prisons Act 1970, and

(b) a place specified under section 3 of the Prisons Act 1972;

“relevant language”, in relation to a translation of a Framework Decision Certificate or a judgment, means—

(a) where Part 2 or section 73(7) applies, the official language or one of the official languages of an executing state or such other language as an executing state may, having regard to any declaration by that state under Article 23(1) of the Framework Decision, accept, and

(b) where Part 3 applies, the official language or one of the official languages of an issuing state or such other language as an issuing state may, having regard to any declaration by that state under Article 23(1) of the Framework Decision, accept;

“sentence” means a custodial sentence or measure involving deprivation of liberty imposed by a court for a limited or unlimited period of time on account of a criminal offence in criminal proceedings and includes a punishment or measure that includes a limited or unlimited period of time that is served otherwise than in custody but does not include a part of a sentence the execution of which has been conditionally suspended upon its imposition—

(a) where Part 2 applies, by a court in the State, and

(b) where Part 3 applies, by a court in an issuing state;

“sentenced person”, in relation to a judgment, means the person the subject of the judgment.

(2) A word or expression that is used in this Act and also used in the Framework Decision has, other than where the context otherwise requires, the same meaning in Part 2 or 3, as the case may be, as in the Framework Decision.

(3) For the purposes of Part 2 or 3, a sentenced person shall be deemed to be living in a state if it is the place to which he or she is attached based on his or her habitual residence and on his or her family, social or professional ties with that place.

3. Application of Act

3. This Act applies to sentences whether imposed before, on or after the date on which it comes into operation.

4. Executing state presumed to comply with Framework Decision

4. It shall be presumed that an executing state will comply with the requirements of the Framework Decision, unless the contrary is shown.

5. Competent authorities in State

5. (1) Subject to subsection (2), the Minister is the competent authority in the State for the purposes of this Act and the Framework Decision.

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

(a) the provision of consent under section 27(1) to a request from the competent authority of an executing state,

(b) the grant or refusal of an application under section 37(1) to recognise a judgment in the State and enforce a sentence to which the judgment relates,

(d) the adaptation of a sentence under section 40,

(e) the issue of a warrant under section 42(1)(a) or (b) for the purpose of enforcement of a sentence in the State,

(f) the making of an order under section 43(1) or (2) for the purpose of enforcement of a sentence in the State, and

(g) the issue of a request under section 47(3) for the consent of the competent authority of an issuing state.

6. Transmission of documents

6. (1) Where the Minister is required to forward a document or provide information to the competent authority of an executing state or an issuing state for the purposes of Part 2 or 3 or section 73, the Minister shall transmit the document or provide the information concerned by any means (including delivery) capable of producing a record in writing under conditions allowing the competent authority to establish the authenticity of the document or the information.

(2) Subsection (3) applies if a document forwarded to the Minister for the purposes of Part 2 or 3 or section 73 has been directly forwarded to the Minister by any means (including delivery) which has produced a record in writing of the document under conditions allowing the Minister to establish the authenticity of the document.

(3) The record in writing of a document shall be deemed to be the document that was transmitted.

(4) For the purposes of Part 2 or 3 or section 73, a document shall be deemed to be a true copy of an original document if it has been certified as a true copy of the original document by the competent authority of an issuing state.

(5) A document purporting to be a copy of—

(a) a Framework Decision Certificate,

(b) a judgment to which a certificate referred to in paragraph (a) applies,

(d) any other document transmitted in accordance with subsection (1) by the competent authority of an executing state or an issuing state,

shall, unless the contrary is shown, be evidence in any proceedings of the matters specified therein without further proof.

7. Annual report to Houses of Oireachtas

7. (1) As soon as may be after the end of each year but not later than 4 months thereafter, the Minister shall cause to be laid before each House of the Oireachtas a report on the operation of Parts 1 to 3 and section 73 during that year.

(2) Notwithstanding subsection (1), if, but for this subsection, the first report under this section would relate to a period of less than 6 months, the report shall relate to that period and to the year immediately following that period and shall be made as soon as may be, but not later than 4 months after the end of that year.

8. Expenses

8. The 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, National Development Plan Delivery and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 State as issuing state

9. Interpretation (Part 2)

9. (1) In this Part—

“adaptation”, in relation to a sentence, means the adaptation of the sentence in accordance with Article 8 of the Framework Decision;

“applicant” has the meaning assigned to it by section 10(1);

“application” means an application under section 10(1);

“decision to forward”, in relation to a judgment, means a decision by the Minister under section 16 to forward the judgment to the competent authority of an executing state;

“decision to recognise”, in relation to a judgment, means a decision by the competent authority of an executing state to recognise the judgment and enforce the sentence to which it relates which has been forwarded to the competent authority;

“forward”, in relation to a judgment, means to forward the judgment in accordance with section 17;

“Irish Prison Service” means the prison service of the Department of Justice, which is charged with the management of prisons;

“notification parties” has the meaning assigned to it by section 11(1);

“original order” has the meaning assigned to it by section 25(1);

“reasoned opinion” means the reasoned opinion of the competent authority of the executing state that the enforcement of a sentence in respect of a person by that state would not facilitate the social rehabilitation and successful reintegration of the person into society;

“transfer warrant” has the meaning assigned to it by section 22(1).

(2) Nothing in this Part shall operate to prejudice the forwarding under section 11 of the Act of 2019 of a judgment in the State (within the meaning of Part 2 of the Act of 2019) and, where applicable, the probation decision (within the meaning of Part 2 of the Act of 2019), to a Member State competent authority (within the meaning of the Act of 2019).

10. Application to forward judgment

10. (1) Each of the following persons (in this Part referred to as “applicant”) may make an application in writing to the Minister to forward a judgment imposed in the State to a competent authority of an executing state for the purposes of the recognition of the judgment and enforcement of the sentence to which the judgment relates in that state:

(a) the sentenced person;

(b) where the sentenced person is in a prison, the Director General of the Irish Prison Service;

(d) where the sentenced person is in a children detention school, the Director of the children detention school;

(e) the competent authority of the executing state (in so far as the application is to forward the judgment to the executing state for which the competent authority is designated).

(2) Without prejudice to subsection (1)and subject to subsection (3), the Minister may consider whether to forward a judgment imposed in the State to a competent authority of an executing state for the purposes of the recognition of the judgment and enforcement of the sentence to which the judgment relates in that state.

(3) Sections 11 to 16 shall apply to a consideration by the Minister under subsection (2) to forward a judgment as they apply to an application under subsection (1) and a reference in those sections to an application shall be construed as including a reference to such a consideration.

11. Information to be provided to notification parties

11. (1) The Minister shall, on receipt of an application in respect of a judgment, notify the competent authority of the executing state and the following persons (in this Part referred to as “notification parties”), other than the applicant, of the making of the application:

(a) where the sentenced person is in the State, that person;

(b) where the sentenced person is in a prison, the Director General of the Irish Prison Service;

(d) where the sentenced person is in a children detention school, the Director of the children detention school.

(2) The Minister shall notify the applicant and the notification parties in relation to an application of the following matters:

(a) a decision by the Minister to forward the judgment in respect of the application;

(b) a decision by the Minister to give his or her consent under section 20(1) to the partial recognition and enforcement by the executing state of the sentence to which a judgment in respect of the application relates;

(d) the receipt by the Minister of information regarding the adaptation of the sentence to which the application relates;

(e) a decision (including reasons for the decision) by the Minister under section 28 to withdraw the Framework Decision Certificate in respect of the judgment to which the application relates.

(3) The Minister shall, at the request of the competent authority of an executing state, make all reasonable efforts to provide such information in connection with the transfer to the executing state of the sentenced person as may be specified in the request to—

(a) the sentenced person, or

(b) where section 12(3) applies, to the legal representative of the sentenced person, or any other person considered by the Minister to be an appropriate person for the purpose of that section.

12. Opinion of sentenced person

12. (1) Where an application is made in respect of a sentenced person in the State, the Minister, subject to subsection (5), shall provide the sentenced person, or cause him or her to be provided, with an opportunity within such period as is specified in the notification referred to in section 11(1) (being a period of not less than 21 days) to give his or her opinion regarding the application.

(2) A sentenced person may give his or her opinion orally or in writing and, if given orally, the Minister shall arrange for the opinion to be recorded in writing.

(3) Where a sentenced person is, because of his or her age or physical or mental condition, incapable of giving his or her opinion, the Minister shall provide, or cause to be provided, the opportunity referred to in subsection (1) to the legal representative of the sentenced person, or any other person considered by the Minister to be an appropriate person for that purpose.

(4) Where an opinion is provided by a sentenced person under this section (including any case where subsection (3) applies), the Minister shall notify the competent authority of the executing state to which the application relates of the opinion.

(5) This section shall not apply unless the Minister is satisfied that the judgment may be forwarded.

13. Consent of sentenced person

13. (1) A judgment to which an application relates may not be forwarded to an executing state without the consent in writing of the sentenced person unless—

(a) the sentenced person is a national of the executing state and he or she lives in that state,

(b) the sentenced person will be sent to the executing state upon release from the enforcement of the sentence to which the judgment relates in accordance with an order included in, or ancillary to, the judgment, or

(i) in circumstances in which the criminal proceedings to which the application relates were pending in the State against him or her, or

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