Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023
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Committal order and related matters | ||
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62. The Act of 1995 is amended by the insertion of the following sections after section 7: | ||
“Committal order | ||
7A. (1) Subject to subsection (3), the High Court shall, on application by or on behalf of the Minister, in respect of a sentenced person brought into the State under a warrant issued under section 7(2), make an order (in this Act referred to as a ‘committal order’) not later than 21 days after the sentenced person is brought into the State, for the purpose of enforcement of the sentence, committing the person to a place of detention. | ||
(2) An application under this section shall— | ||
(a) be brought by the Minister after a sentenced person is brought into the State under a warrant issued under section 7(2), and | ||
(b) be made on notice to the sentenced person. | ||
(3) Where, for any reason, the High Court is unable to make a committal order within the period referred to in subsection (1), the period may be extended by such reasonable period as may be required by the court for that purpose. | ||
(4) A sentenced person may continue to be detained or otherwise restricted in his or her personal liberty pursuant to a warrant issued under section 7(2) notwithstanding that the period referred to in subsection (1) is extended under subsection (3). | ||
(5) The period for which a sentenced person may be committed to a place of detention in a committal order shall, subject to subsection (6), be a period equal to the period of the sentence (including where the sentence is adapted in accordance with section 7C(3) or (5) or both) less— | ||
(a) the period of the sentence actually served by the person in the sentencing state, and | ||
(b) the deductible period. | ||
(6) In determining the period for which a sentenced person may be committed to a place of detention in a committal order— | ||
(a) the High Court shall not have regard to the provisions of law of the sentencing state under which the sentenced person is entitled to early or conditional release, and | ||
(b) where by operation of law of the sentencing state the sentenced person would be entitled, other than in accordance with paragraph (a), to be released from custody, whether under licence or otherwise, at a specified time having served a specified portion of the sentence— | ||
(i) the High Court shall treat such release as a measure relating to the administration of the sentence, and | ||
(ii) the sentence shall be treated as a sentence to be spent in custody or other detention for the full period. | ||
(7) Where a committal order is made in respect of a sentenced person who has been sentenced to a term of imprisonment for life in a sentencing state, the order shall specify that the person is to be committed for imprisonment for life irrespective of whether his or her eligibility for early or conditional release (including parole) in the sentencing state was— | ||
(a) restricted for the whole term of the sentence, or | ||
(b) 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 state, or | ||
(iii) a decision of a body in the sentencing state, other than a body referred to in subparagraph (i), on whom a power to make such a decision has been conferred by law. | ||
(8) Notwithstanding subsection (5), the period for which a sentenced person may be committed to a place of detention in a committal order may exceed the period for which he or she could lawfully have been detained or otherwise had his or her personal liberty restricted in custody in the sentencing state. | ||
Effect of committal order | ||
7B. (1) Subject to subsections (3) and (4) and section 7C, 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 state 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 7(2) 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 7(2) 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 state. | ||
(4) The Criminal Procedure Act 1993 shall not apply to a person in respect of whom a warrant is issued under section 7(2) or a committal order is made in so far as the conviction or sentence imposed in the sentencing state is concerned. | ||
Adaptation | ||
7C. (1) The High Court may, on the application by or on behalf of the Minister (whether as part of an application under section 7 or 7A 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) may be made ex parte other than where— | ||
(a) the sentenced person is in the State, or | ||
(b) the High 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 sentencing state 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 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 sentencing state 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 7(2) 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 state, | ||
(b) any provisions of law of the sentencing 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 sentencing 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 sentencing state, or | ||
(III) a decision of a body in the sentencing 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 sentencing 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 a sentencing 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 sentencing 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 a sentencing 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 sentencing state. | ||
Transfer to State of enforcement of sentence | ||
7D. (1) Subject to subsection (2), the enforcement of a sentence shall, where the sentenced person is in the sentencing state, be governed by the law of the State from the time he or she is delivered into the custody of a person authorised by the Minister to receive the sentenced person under a warrant issued under section 7(2). | ||
(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 state upon receipt by the sentencing state of notification by the Minister of the escape. | ||
Termination of enforcement | ||
7E. (1) The enforcement of a sentence in the State shall cease where the Minister is notified by the sentencing state 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 state 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.”. |