Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023
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Effect of committal order and related matters | ||
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69. The Act of 2005 is amended by the insertion of the following sections after section 10: | ||
“Effect of committal order | ||
10A. (1) Subject to subsections (3) and (4) and section 10B, the effect of a committal order shall be to authorise the continued enforcement by the State of a sentence (in its legal nature and duration) imposed in a sentencing country and such an order shall— | ||
(a) where a sentenced person is to be committed to a prison, have the same force and effect as an order imposing a sentence of imprisonment following conviction by the court, | ||
(b) where a sentenced person is to be committed to a designated centre, have the same force and effect as an order by the court under section 5(2) of the Act of 2006 committing a person to such a centre, and | ||
(c) where a sentenced person is to be committed to a children detention school, have the same force and effect as an order imposing a sentence of detention in a children detention school following conviction by the court. | ||
(2) Without prejudice to the generality of subsection (1), the following shall apply in relation to a sentence which is to be enforced in the State— | ||
(a) section 17 (3) of the Criminal Justice Administration Act 1914 in respect of a sentenced person committed to a prison, | ||
(b) the power to commute or remit a punishment under section 23 of the Criminal Justice Act 1951 , | ||
(c) the power of the Minister to give a direction that a sentenced person be released from prison for a temporary period under section 2 of the Criminal Justice Act 1960 or be released for such period as may be specified by the Minister under section 2A of that Act, | ||
(d) the power of the Parole Board to make a parole order under section 27 of the Parole Act 2019 in respect of a sentenced person, and | ||
(e) in so far as the period served by a sentenced person in a place of detention on foot of a warrant issued under section 8 or 9 and a committal order is concerned, the rules or practice whereby sentenced persons generally may earn remission of sentences by industry or good conduct. | ||
(3) A person in respect of whom a warrant is issued under section 8 or 9 or a committal order is made shall not be entitled to bring any appeal in the State against the conviction or the sentence imposed in the sentencing country. | ||
(4) The Criminal Procedure Act 1993 shall not apply to a person in respect of whom a warrant is issued under section 8 or 9 or a committal order is made in so far as the conviction or sentence imposed in the sentencing country is concerned. | ||
Adaptation | ||
10B. (1) The High Court may, on the application by or on behalf of the Minister (whether as part of an application under section 8(1) or at any other time) or of its own motion, make an order under subsection (3) or (5) or both adapting a sentence. | ||
(2) An application under subsection (1) shall be made on notice to the sentenced person. | ||
(3) Where the sentence imposed in the sentencing country is by its legal nature incompatible with the law of the State, the High 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 sentencing country 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 sentencing country is by its duration incompatible with the law of the State, the High 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 sentencing 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) or both. | ||
(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 8 or 9 or a committal order notwithstanding that an application is made under subsection (1) for an order under subsection (3) or (5) or both 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 a sentencing country, | ||
(b) any provisions of law of the sentencing country 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 sentencing country, 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 sentencing country, or | ||
(III) a decision of a body in the sentencing country, 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 sentencing country 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 a sentencing country, 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 sentencing country, 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 a sentencing country, 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 sentencing country. | ||
Transfer to State of enforcement of sentence | ||
10C. (1) Subject to subsection (2), the enforcement of a sentence shall, where the sentenced person is in the State and he or she is a person to whom section 10(1) applies, be governed by the law of the State, from the date of the making of an order under that section. | ||
(2) Where a sentenced person escapes from custody or other detention and has not been retaken, the enforcement of the sentence shall revert to the sentencing country upon receipt by the sentencing country of notification by the Minister of the escape. | ||
Termination of enforcement | ||
10D. (1) The enforcement of a sentence in the State shall cease where the Minister is notified by the sentencing country of any decision or measure, other than a decision or measure in respect of remission, as a result of which the sentence ceased to be enforceable in that country immediately or from such date as is contained in the notification. | ||
(2) The Minister shall, on receipt of a notification under subsection (1), immediately inform the following persons of the decision or measure referred to in the notification: | ||
(a) where the sentenced person is in a prison, the governor of the prison; | ||
(b) where the sentenced person is in a designated centre, the clinical director of the designated centre; | ||
(c) where the sentenced person is in a children detention school, the Director of the children detention school. | ||
(3) Subject to subsection (4), a sentenced person to whom a notification referred to in subsection (1) relates shall, upon the governor of the prison, the clinical director of the designated centre or the Director of the children detention school (as the case may be) being informed under subsection (2) that the notification has been received, be released from custody or other detention forthwith or on such later date as may be specified in the notification. | ||
(4) Subsection (3) shall not apply where— | ||
(a) (i) the person has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State, | ||
(ii) on the date on which he or she would, but for this paragraph, be entitled to be released under subsection (3), all or part of the term of imprisonment remains unexpired, and | ||
(iii) the person is required to serve all or part of the remainder of that term of imprisonment, | ||
or | ||
(b) (i) the person has been charged with, or convicted of, an offence in the State, and | ||
(ii) on the date on which he or she would, but for this paragraph, be entitled to be released under subsection (3), he or she is required to be in custody, by virtue of having been remanded in custody pending his or her being tried, or the imposition of sentence, as the case may be, in respect of that offence. | ||
(5) In this section, ‘governor’, in respect of a prison, means— | ||
(a) the governor of the prison, or | ||
(b) a person who is for the time being performing the functions of governor of the prison. | ||
Revocation and variation of warrants and orders | ||
10E. (1) The Minister may at any time (including as part of an application under section 10B) apply to the High Court for an order revoking, or varying the terms of a warrant under section 8 or 9 or a committal order. | ||
(2) A sentenced person may in writing request the Minister to bring an application under subsection (1) and the Minister shall bring the application unless, having regard to all the circumstances, he or she is satisfied that it is not necessary. | ||
(3) The High Court may, upon an application under subsection (1), make an order revoking or varying the terms of a warrant or order referred to in that subsection if the court is satisfied that the revocation or variation is necessary for the purposes of this Act and the Convention on the Transfer of Sentenced Persons done at Strasbourg on 18 December 1997.”. |