Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023
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Adaptation | ||
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40. (1) An appropriate court, on the application by or on behalf of the Minister (whether as part of an application under section 37 (1) or at any other time) or of its own motion, may make an order under subsection (3) or (5) or both adapting a sentence. | ||
(2) An application under subsection (1) may be made ex parte other than where— | ||
(a) the sentenced person is in the State, or | ||
(b) the appropriate court directs that it is in the interests of justice that it be made on notice to the sentenced person. | ||
(3) Where the sentence imposed in the issuing state is by its legal nature incompatible with the law of the State, the appropriate court may make an order adapting the legal nature of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed. | ||
(4) The legal nature of a sentence adapted under subsection (3) shall, as far as practicable, correspond to the legal nature of the sentence concerned imposed in the issuing state and shall not, in any event, either— | ||
(a) aggravate it, or | ||
(b) exceed the maximum penalty prescribed by the law of the State for a similar offence. | ||
(5) Where the sentence imposed in the issuing state is by its duration incompatible with the law of the State, the appropriate court may make an order adapting the duration of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed. | ||
(6) The duration of a sentence adapted under subsection (5) shall, as far as practicable, correspond to the duration of the sentence imposed in the issuing state and shall not, in any event, either— | ||
(a) aggravate it, or | ||
(b) exceed the maximum penalty prescribed by the law of the State for a similar offence. | ||
(7) The enforcement of a sentence that is by its legal nature or duration incompatible with the law of the State shall not be deemed to be unlawful by reason only of the sentence not having been adapted by way of an order under subsection (3) or (5). | ||
(8) A sentenced person may continue to be detained or otherwise restricted in his or her personal liberty pursuant to a warrant issued under section 35 (1), 42 (1)(a) or(b) or a committal order notwithstanding that an application is made under subsection (1) for an order under subsection (3) or (5) adapting his or her sentence. | ||
(9) A sentence shall not be taken by its legal nature to be incompatible with the law of the State by reason only of— | ||
(a) the duration of the sentence imposed in an issuing state, | ||
(b) any provisions of law of the issuing state in respect of early or conditional release which applied to the sentence prior to the transfer of its enforcement to the State, | ||
(c) any provisions of law of the issuing state, other than the provisions referred to in paragraph (b), under which the sentenced person would be entitled to be released from custody, whether under licence or otherwise, at a specified time having served a portion of the sentence, | ||
(d) in the case of a sentence of imprisonment for life— | ||
(i) any restriction for the whole term of the sentence regarding the eligibility of the sentenced person to early or conditional release (including parole), or | ||
(ii) any condition that means that the eligibility of the sentenced person to early or conditional release (including parole) was conditional on his or her having served a specified term of imprisonment as a result of— | ||
(I) a decision or order by the court or tribunal that imposed the sentence, | ||
(II) the operation of law of the issuing state, or | ||
(III) a decision of a body in the issuing state, other than a body referred to in clause (I), on whom a power to make such a decision has been conferred by law, | ||
or | ||
(e) its imposition in the issuing state in respect of more than one offence. | ||
(10) In this section, “incompatible with the law of the State” means— | ||
(a) in so far as it applies to the legal nature of a sentence imposed in an issuing state, a sentence that, subject to subsection (9), consists of a punishment or measure that is different in nature from the punishment or measure which could be imposed on the sentenced person if he or she were— | ||
(i) convicted in the State of an offence corresponding to the offence of which he or she was convicted in the issuing state, or | ||
(ii) the subject of a special verdict under section 5 of the Act of 2006, | ||
and | ||
(b) in so far as it applies to the duration of a sentence imposed in an issuing state, a sentence that is greater than the maximum term of imprisonment or other detention to which the sentenced person would be liable if he or she were convicted in the State of an offence corresponding to the offence of which he or she was convicted in the issuing state. |