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

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Consideration of judgment, etc.

23. (1) Subject to subsections (2) and (3), the Minister shall, after the Minister has received a judgment and, where applicable, the probation decision pursuant to Article 5 of the Framework Decision—

(a) subject to subsection (9), make an application, on notice to the sentenced person, the Probation Service and the superintendent of the Garda Síochána for the district in which the sentenced person resides or will reside, to the appropriate court for the recognition under section 24 of that judgment and, where applicable, that probation decision, or

(b) subject to subsection (10), refuse to recognise, on one or more than one of the grounds specified in any of subsections (5) to (7), that judgment and, where applicable, that probation decision for the purposes of the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned.

(2) The Minister may postpone taking action under subsection (1) in respect of the judgment and, where applicable, the probation decision referred to in that subsection if any necessary remedial action referred to in section 20 (2)(b) still needs to be taken, within the reasonable period of time referred to in that section specified in the notice concerned under section 20 (2) given to the competent authority in the issuing state, as regards the Article 6 certificate that accompanied, or that should have accompanied, that judgment and, where applicable, that probation decision.

(3) The Minister shall, before taking action under subsection (1), consult with the Probation Service and the Garda Síochána.

(4) Where the Minister receives a judgment and, where applicable, the probation decision, together with the accompanying Article 6 certificate, pursuant to Articles 5 and 6 of the Framework Decision, the Minister shall, if requested to do so by the competent authority in the issuing state, inform the competent authority in the issuing state of the maximum term of imprisonment, or other 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.

(5) Subject to subsection (8), the Minister may refuse to recognise a judgment and, where applicable, the probation decision if one or more than one of the following grounds applies:

(a) a relevant matter within the meaning of section 20 (1) applies in relation to the Article 6 certificate which accompanied, or which should have accompanied, that judgment and, where applicable, that probation decision, and the reasonable period of time specified in the notice concerned under section 20 (2) given to the competent authority in the issuing state in respect of that matter has expired without the necessary remedial action referred to in section 20 (2)(b) having been taken in respect of that matter;

(b) that Article 6 certificate includes a probation measure or alternative sanction that does not fall within section 19 (1);

(c) the sentenced person, by virtue of any Act of the Oireachtas, is, under the law of the State, immune from prosecution for an offence consisting of an act or omission that constitutes, whether in whole or in part, the offence to which the judgment and, where applicable, the probation decision relates;

(d) the judgment and, where applicable, the probation decision provides for medical or therapeutic treatment which, in the opinion of the Minister and notwithstanding section 24 (2), it would be impossible or impracticable for the State to provide or supervise;

(e) subject to subsection (6), the judgment and, where applicable, the probation decision relates to an offence which is regarded under the law of the State as having been committed wholly or for an essential part in the State.

(6) The Minister may refuse to recognise a judgment and, where applicable, the probation decision on the ground referred to in subsection (5)(e) in relation to an offence committed partly in the State only in exceptional circumstances, having regard to the specific circumstances of the case, and in particular to whether a major or essential part of the conduct concerned took place in the issuing state.

(7) Subject to section 21 and subsection (8), the Minister shall refuse to recognise a judgment and, where applicable, the probation decision if one or more than one of the following grounds applies:

(a) the sentenced person has not returned and does not want to return to the State;

(b) the Minister has not consented to the forwarding of the judgment and, where applicable, the probation decision in respect of the sentenced person where such person is not lawfully and ordinarily residing in the State;

(c) it is immediately clear from the information provided in the Article 6 certificate concerned that recognition of the judgment and, where applicable, the probation decision would infringe the ne bis in idem principle;

(d) the judgment and, where applicable, the probation decision relates to an offence under the law of the issuing state which does not correspond to an offence under the law of the State;

(e) the offence under the law of the issuing state to which the judgment relates corresponds to an offence under the law of the State in respect of which a person of the same age as the sentenced person could not be proceeded against by reason of his or her age at the time of the offence;

(f) the sentenced person did not appear in person at the proceedings resulting in the judgment unless the Article 6 certificate accompanying the judgment indicates the matters required by points 2, 3 and 4 of point (h) of Annex I to the Framework Decision;

(g) the probation measure or alternative sanction concerned is of less than 6 months’ duration or the remaining duration of the measure or sanction is less than 6 months.

(8) In the case referred to in subsection (5) or (7), the Minister may, by any means capable of producing a record in writing, request the competent authority in the issuing state to supply the Minister with any additional information required as soon as is practicable, before the Minister decides not to recognise a judgment and, where applicable, the probation decision for the purposes of the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned.

(9) Where the appropriate court for the purposes of an application under subsection (1)(a) is the Circuit Court, the application shall be made to the judge of the Circuit designated for that purpose by the President of the Circuit Court.

(10) The Minister shall not refuse to recognise a judgment and, where applicable, the probation decision on the ground that, in relation to a revenue offence—

(a) no tax or duty of the kind to which the offence relates is imposed in the State, or

(b) the rules relating to taxes, duties, customs or exchange control that apply in the issuing state differ in nature from the rules that apply in the State to taxes, duties, customs or exchange control.