The Gazette 1996

GAZETTE

JANUARY/FEBRUARY 1996

It is envisaged that a significant number of prisoners in Irish prisons whose families live in Northern Ireland will seek to avail of the transfer-out procedures set out in Sections 4 and 5 of the Act to secure a transfer to a prison in Northern Ireland. The Minister for Justice is vested with absolute discretion to grant or refuse to issue a Warrant for the transfer of a sentenced prisoner out of the State. However the Minister must give reasons in writing whenever she decides to refuse an application and is prohibited from discriminating between applicants in the exercise of her powers. Ireland has entered a Reservation entitling it to limit the excess of inward over outward transfers in the light of availability of prison spaces. In the context of the current peace process the provisions contained in sections 6 and 7 of the Act have received most publicity. They entitle any Irish prisoner - which includes any prisoner who has "close ties" with this country - who has been sentenced in a Convention Country to apply for a transfer back to Ireland to serve the balance of his sentence. Of course the Transfer Convention is not confined to Republican prisoners but can be invoked by any sentenced person who fulfils the criteria outlined above. It must be remembered that the Convention and the Act merely confer a right to apply for a transfer back to Ireland to serve the balance of a sentence in an Irish prison. Both the requested State and the Irish Minister for Justice must agree to the proposed transfer. Both retain a discretion under the Transfer Convention to support or oppose a Transfer Application. The request should first be made in writing to the designated authority in the sentencing state. Transfer In

Section 6(2) of the Act facilitates a request being made directly to the Minister for Justice from an Irish prisoner abroad for her consent to his transfer to Ireland to serve the balance of his sentence. If the consent of the two relevant States is forthcoming, then the Minister for Justice applies to the High Court to issue a warrant to authorise the bringing of the sentenced person into the State. The High Court must issue the warrant once it is satisfied that all the formalities are complied with and the proofs are in order. The Transfer Convention gives this State the option, where a sentenced person is being repatriated, to either continue the operation of the sentence imposed abroad (the so-called "Continuation Model"), or, under Section 7(5), if the sentence imposed abroad is found by the High Court to be incompatible with Irish law, that Court can adapt the sentence to one more compatible with Irish law for the offence in question (the so-called "Conversion Model"). The short-comings in the legislation are clear from section 7 and include the following: a. The sentenced person appears to have no right under s7 of the Act to request the High Court to convert his sentence to one more compatible with Irish law. b. The sentenced person appears to have no right to be heard or represented in any application by the Minister for Justice to the High Court for the issuing of a Warrant to bring him into the State and/or the adaptation of his sentence. c. The criteria to be applied by the High Court when deciding whether to opt for the Continuation or Conversion The Sentence

transferee to be legally aided under the provisions of the Criminal Justice (Legal Aid) Act, 1962 or otherwise in relation to any application to the High Court under the Act. e. The anti-discrimination provision, Section 10(1) is so worded as to expressly permit discrimination for ". . . good reason. . ." and also allows the Minister to take ". . . into account the operational requirements of the prison service and the welfare of the applicant." application or consent to a transfer into or out of this State, Section 10(2) provides that the decision and grounds for the decision shall be notified to the applicant or requesting state, as the case may be. However, the obligation to specify reasons arises only ". . . where practicable and where the interests of justice do not preclude so doing." g. The transferee's rights in relation to remission of sentence should be clarified. Unless a Statutory Instrument is introduced clarifying the operation of Section 7 of the Act, one can envisage it being challenged by transferees who wish to be heard by the High Court in relation to the transfer and particularly in relation to an adaptation of the sentence imposed by the foreign Court. By Declaration, Ireland has excluded the Application of the procedure provided for in Article 9. LB of the Convention in cases when Ireland is the administering State. At any time there are estimated to be about 1,250 Irish-born detainees serving sentences in prisons, hospitals and institutions abroad. The hardship and anguish suffered by their families at home is immeasurable. In addition to the inevitable deprivation of liberty, Irish prisoners abroad are very susceptible to racism, harassment, language and cultural isolation, f. Where the Minister refuses an Conclusions

Model of sentence are nowhere defined, identified or explained.

d. There is no right on the part of a

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