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.

Transfer In

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

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.

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 Sentence

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

Model of sentence are nowhere

defined, identified or explained.

d. There is no right on the part of a

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."

f. Where the Minister refuses an

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.

Conclusions

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,