Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023
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Conditional release of persons from prisons and related matters | ||
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53. The Act of 1960 is amended by the insertion of the following sections after section 2: | ||
“Conditional release of persons from prisons | ||
2A. (1) Subject to subsection (2), this section applies to a person serving a foreign sentence in relation to which a release provision applies. | ||
(2) This section shall not apply to a person serving a sentence of imprisonment for life. | ||
(3) This section shall apply to a person regardless of whether the foreign sentence being served by the person was imposed prior to or after the coming into operation of section 51 of the Act of 2023. | ||
(4) Subject to subsection (6) and other than where subsection (5) applies, the Minister shall, for the purpose of avoiding the loss of benefit of the release provision referred to in subsection (1), direct that such person as is specified in the direction be released (in this Act referred to as ‘conditional release’) from prison for, subject to section 2B, such period, and subject to such conditions, as may be specified in the direction or rules under section 2D applying to that person. | ||
(5) This subsection applies where the Minister is of the opinion that, for reasons connected with any one or more of the following matters, it would not be appropriate to give a direction under this section: | ||
(a) the likelihood that the person would not have been released, in accordance with the release provision, from custody in the sentencing state (whether subject to conditions or otherwise) had the enforcement of the foreign sentence not transferred to the State; | ||
(b) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates; | ||
(c) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto; | ||
(d) the period of the sentence of imprisonment served by the person; | ||
(e) the effect of any order adapting the sentence under section 7C(3) or (5) of the Act of 1995, 10B(3) or (5) of the Act of 2005 or 40 (3) or (5) of the Act of 2023 or partial recognition and enforcement (within the meaning of Part 3 of the Act of 2023) of the sentence; | ||
(f) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison; | ||
(g) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him or her relates; | ||
(h) the risk of the person failing to return to prison upon the expiration of any period of conditional release; | ||
(i) the conduct of the person while in custody, while previously the subject of a direction under section 2 or this section or while previously released on parole (within the meaning of the Parole Act 2019 ); | ||
(j) any report of, or recommendation made by— | ||
(i) the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned, | ||
(ii) the Garda Síochána, | ||
(iii) a probation officer, | ||
(iv) the sentencing state, or | ||
(v) any other person whom the Minister considers would be of assistance in enabling him or her to make a decision as to whether to give a direction under this section that relates to the person concerned; | ||
(k) the risk of the person committing an offence during any period of conditional release; | ||
(l) the risk of the person failing to comply with any conditions attaching to his or her conditional release; | ||
(m) the likelihood that any period of conditional release might not accelerate the person’s social rehabilitation and reintegration into society or improve his or her prospects of obtaining employment. | ||
(6) The Minister shall not give a direction under this section in respect of a person— | ||
(a) to whom section 24 (1)(b) of the Parole Act 2019 applies, if that person has been released on parole pursuant to a parole order (within the meaning of the Parole Act 2019 ), or | ||
(b) where the person has been charged with, or convicted of, an offence and is in custody pursuant to an order of a court remanding him or her to appear at a future sitting of a court. | ||
(7) The Minister shall in a timely manner decide whether to give a direction under this section. | ||
(8) Where the Minister refuses to give a direction under this section, he or she shall, unless a direction is subsequently given, review the refusal at intervals (which are not greater than 2 years). | ||
(9) A direction under this section shall be given to the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned. | ||
(10) The governor of, or person for the time being performing the functions of governor in relation to, the prison concerned to whom a direction under this section is given shall comply with that direction, and shall make and keep a record in writing of that direction. | ||
(11) The giving of a direction under this section in respect of a person shall not confer an entitlement on him or her to such further direction. | ||
(12) Nothing in this section shall affect— | ||
(a) the power conferred by section 23 of the Criminal Justice Act 1951 to commute or to remit punishment, | ||
(b) the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct, | ||
(c) the power of the Minister to give a direction that a person be released for a temporary period under section 2 (including that section as applied by section 4 of the Prisons Act 1970 ), | ||
(d) the operation of the Criminal Justice (Release of Prisoners) Act 1998 , | ||
(e) the operation of section 108 of the Criminal Justice Act 2006 , and | ||
(f) the operation of the Parole Act 2019 in respect of a person who is eligible for parole in accordance with section 24(1)(b) of that Act. | ||
(13) In this section, ‘probation officer’ means a person appointed by the Minister to be a probation officer. | ||
Period of conditional release | ||
2B. (1) The Minister may, in specifying a period of conditional release in a direction under section 2A, specify such period as he or she considers appropriate having regard to— | ||
(a) the purpose of avoiding the loss of the benefit of the release provision in relation to a foreign sentence being served by a person, | ||
(b) the desirability of specifying a period that is not in excess of the maximum period of release under the release provision applied pro rata to the portion of the foreign sentence served in the sentencing state, and | ||
(c) any reduction in the time to be served in prison that has already been applied in respect of the release provision upon the making of a committal order (within the meaning of the Act of 1995, the Act of 2005 or Part 3 of the Act of 2023, as the case may be) in relation to the foreign sentence. | ||
(2) The Minister may adjust, in accordance with such rules under section 2D as may apply, the period of conditional release to be specified in a direction under section 2A to avoid the accrual of both of the following benefits to the person in respect of whom the direction is to be made— | ||
(a) the calculation, after the transfer to the State of the enforcement of the foreign sentence, of the period of conditional release on the basis of the pro rata application of the release provision in relation to the foreign sentence to the portion of that sentence served in the sentencing state, and | ||
(b) the accrual to him or her while on conditional release of the benefit of the application of the rules and practice whereby prisoners generally may earn remission of sentence by industry and good conduct. | ||
Variation of conditional release | ||
2C. (1) The Minister may at any time vary a condition specified in a direction under section 2A whether by the alteration, addition or revocation of the condition. | ||
(2) A variation under subsection (1) by the Minister of a condition specified in a direction under section 2A shall— | ||
(a) be in writing, | ||
(b) specify the date from which the variation shall take effect, | ||
(c) include reasons for the decisions, and | ||
(d) not include, other than to the extent the Minister considers it necessary, any information that identifies, or could identify, a relevant victim or his or her place of residence. | ||
(3) Where the Minister varies a condition specified in a direction under section 2A, the variation shall— | ||
(a) take effect from the date specified, and | ||
(b) have effect from that date as a condition of the direction. | ||
Rules relating to conditional release | ||
2D. (1) The Minister may make rules for the purpose of enabling sections 2A, 2B and 2C to have full effect and, without prejudice to the generality of the foregoing, such rules may— | ||
(a) specify conditions to which all persons released pursuant to a direction under section 2A shall be subject or conditions to which all persons belonging to such classes of persons as are specified in the rules shall be subject, | ||
(b) for the purposes of section 2B(1)(b), specify the method to be employed for— | ||
(i) calculating a maximum period of release under a release provision, and | ||
(ii) applying the period referred to in subparagraph (i) pro rata to a portion of a foreign sentence served in the sentencing state, | ||
(c) for the purposes of section 2B(2), specify the method to be employed for calculating the adjustment (if any) of a period of conditional release for the purpose specified in that provision, | ||
(d) for the purpose of section 2C, specify the procedure for the variation of a condition specified in a direction under section 2A, and | ||
(e) contain such incidental, supplementary and consequential provisions as the Minister considers to be necessary or expedient for the purpose of enabling those sections to have full force and effect. | ||
(2) Every rule under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the rule is passed by either such House within the next 21 days on which that House has sat after the rule is laid before it, the rule shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”. |