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

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Endorsement of judgment, etc., by appropriate court

24. (1) Subsection (2) applies where an application under section 23 (1)(a) is made to the appropriate court and the appropriate court is satisfied that the judgment and, where applicable, the probation decision the subject of the application comply with the provisions of this Part applicable to that judgment and, where applicable, that probation decision.

(2) Subject to subsections (3) to (10) and sections 25 and 30 , the appropriate court—

(a) subject to paragraphs (b) and (c), shall make an order endorsing the judgment and, where applicable, the probation decision for the purpose of their recognition and the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned,

(b) if it is of the opinion that the probation measure or alternative sanction concerned is, by its nature, incompatible with the law of the State, may—

(i) adapt the measure or sanction to that of a measure or sanction prescribed by the law of the State for an offence which corresponds to the offence for which the probation measure or alternative sanction was imposed, and

(ii) specify the adaptations concerned in the order referred to in paragraph (a),

and

(c) if it is of the opinion that the period of duration of the probation measure or alternative sanction concerned is incompatible with the law of the State, may—

(i) adapt that period to that of a period of duration of a measure or sanction, as the case may be, prescribed by the law of the State for an offence which corresponds to the offence for which the probation measure or alternative sanction was imposed, and

(ii) specify the adaptations concerned in the order referred to in paragraph (a).

(3) (a) The nature of the probation measure or alternative sanction as adapted under subsection (2)(b) shall, in so far as is practicable, correspond with the nature of the probation measure or alternative sanction before such adaptation.

(b) The adaptation under subsection (2)(b) of the probation measure or alternative sanction shall not be done in such a way as to—

(i) aggravate the probation measure or alternative sanction, or

(ii) cause the maximum penalty prescribed by the law of the State, for an offence which corresponds to the offence for which the probation measure or alternative sanction was imposed, to be exceeded.

(4) (a) The period of duration of the probation measure or alternative sanction as adapted under subsection (2)(c) shall, in so far as is practicable, correspond with the period of duration of the probation measure or alternative sanction before such adaptation.

(b) The adaptation under subsection (2)(c) of the period of duration of the probation measure or alternative sanction shall not be done in such a way as to—

(i) aggravate the probation measure or alternative sanction, or

(ii) cause the maximum penalty prescribed by the law of the State for an offence which corresponds to the offence for which the probation measure or alternative sanction was imposed to be exceeded.

(c) Where the period of duration of the probation measure or alternative sanction exceeds the maximum period of duration prescribed by the law of the State for an offence corresponding to the offence for which the probation measure or alternative sanction was imposed, the adaptation under subsection (2)(c) of the first-mentioned period shall be the same as the second-mentioned period.

(5) An order under subsection (2)(a) shall specify—

(a) the measure or sanction under the law of the State to which the probation measure or alternative sanction concerned corresponds, and

(b) the court before which any subsequent proceedings relating to the probation measure or alternative sanction are to be brought.

(6) Subject to subsections (9), and (10), the appropriate court may refuse to endorse 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 appropriate court and notwithstanding section 24 (2), it would be impossible or impracticable for the State to provide or supervise;

(e) subject to subsection (7) , 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.

(7) The appropriate court may refuse to endorse a judgment and, where applicable, the probation decision on the ground referred to in subsection (6)(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.

(8) Subject to section 21 and subsections (9) and (10), the appropriate court shall refuse to endorse 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 endorsement 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 is of less than 6 months’ duration or the remaining duration of the measure or sanction is less than 6 months.

(9) In a case referred to in subsection (6) or (8), the appropriate court may request the Minister to obtain from the competent authority in the issuing state any additional information required by the appropriate court as soon as is practicable, before the appropriate court refuses to endorse 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.

(10) The appropriate court shall not refuse to endorse 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.