Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023

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Grounds for refusal to recognise and enforce

38. (1) The appropriate court may, subject to section 39 (1), refuse to grant an application where—

(a) subject to subsection (2), the sentenced person is not in the issuing state or the State,

(b) subject to subsection (2), the sentenced person has not, as required under the law of the issuing state, given his or her consent to the application or he or she having so consented has withdrawn his or her consent,

(c) subject to subsection (2), none of the following criteria are met—

(i) the sentenced person is an Irish citizen living in the State,

(ii) the sentenced person is an Irish citizen in the issuing state who will be returned to the 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

(iii) the Minister has given his or her consent under section 32 (1),

(d) subject to subsection (2), the enforcement of the sentence in the State would be contrary to the principle of ne bis in idem,

(e) subject to subsection (3), the offence in respect of which the sentence is imposed does not correspond to an offence under the law of the State,

(f) 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 relates,

(g) 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,

(h) subject to subsection (5), at the time of the forwarding of the judgment the term of the sentence concerned is not less than 6 months or, where the sentenced person has already served part of the sentence concerned, there is not less than 6 months of the sentence remaining to be served,

(i) subject to subsection (2), according to the Framework Decision Certificate, he or she did not appear in person at the trial resulting in the judgment and sentence in respect of which the Framework Decision Certificate was forwarded, unless the Certificate states that, in accordance with further such procedural requirements as may be required by the law of the issuing state—

(i) the person in due time was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial,

(ii) the person was not summoned in person but in due time by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial,

(iii) the person, being aware of the scheduled trial, had given a mandate to a legal representative, who was either appointed by the person concerned or by the issuing state, to defend him or her at the trial, and was indeed defended by that representative at the trial, or

(iv) the person was served with the decision and was expressly informed about the right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and the person—

(I) expressly stated that he or she does not contest this decision, or

(II) did not request a retrial or appeal within the applicable time frame,

(j) section 39 (1) applies and the competent authority of the issuing state has refused to provide its consent to a proposed partial recognition and enforcement,

(k) subject to subsection (2), the judgment provides for medical or therapeutic treatment which, notwithstanding section 40 , it would be impossible or impracticable for the State to provide or supervise,

(l) subject to subsection (2), if, in exceptional circumstances and having regard to the specific circumstances and whether a major or essential part of the offence to which the judgment relates was committed in the issuing state, the judgment relates to an offence the major or essential part of which under the law of the State is regarded as having been committed wholly or for a major or essential part within the State,

(m) the competent authority of the issuing state has refused, in response to a request issued under section 47 (3), to provide its consent under that section, or

(n) there are reasonable grounds for believing that—

(i) the sentence was imposed on the sentenced person for the purposes of punishing him or her on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or

(ii) such recognition may prejudice the sentenced person’s position for any of the reasons referred to in subparagraph (i).

(2) Where paragraph (a), (b), (c), (d), (i), (k) or (l) of subsection (1) applies, the appropriate court may, before refusing to grant an application, request the competent authority of the issuing state to provide such additional documentation or information (if any) as the appropriate court may specify and the Minister shall notify the competent authority concerned of any such request.

(3) The appropriate court shall not refuse to grant an application in relation to a revenue offence, on the ground that—

(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.

(4) The appropriate court shall not refuse to grant an application where the court is satisfied that no injustice would be caused to the sentenced person even if—

(a) there is a defect, or an omission of a non-substantial detail, in the Framework Decision Certificate or any accompanying document grounding the application,

(b) there is a variance between any such document and such evidence as may be adduced so long as the court is satisfied that the variance is explained by the evidence, or

(c) there has been a technical failure to comply with a provision of this Act, so long as the court is satisfied that the failure does not impinge on the merits of the application.

(5) In deciding whether to refuse to grant an application in relation to a sentenced person to whom subsection (1)(h) applies, the appropriate court shall consider whether exceptional circumstances exist that warrant the person serving the sentence or remainder of the sentence, as the case may be, in the State.

(6) In this section, “revenue offence” means an offence in connection with taxes, duties, customs or exchange control.