Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Bill 2018


Second Stage speech


David Stanton TD

Minister of State at the Department for Justice and Equality



A Cheann Comhairle,

I am very pleased to present the Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Bill to the House.


This Bill will give effect to the provisions of EU Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.


The Bill is quite a technical piece of legislation but it has a very simple purpose.  Its aim is to facilitate a person who is under the supervision of the probation service in one EU Member State but who lives in another Member State, to return home and continue his or her supervision there. The purpose of a probation order is to prevent reoffending through offender rehabilitation.  A key part of rehabilitation is reintegration into the community and this is very challenging if the person is away from his or her home, family and community.  This Bill will create the legal framework to facilitate the return of a person to his or her home country while ensuring that the necessary probation supervision continues and that the legal consequences for failing to engage with that supervision can be enforced, if necessary.


The Bill applies to individuals who commit an offence while temporarily in another Member State, maybe on holidays or working or studying abroad.  For example, if a person living in Ireland goes on holiday to another Member State and commits an offence for which the court in that Member State imposes a community service order, that person would have to stay in that Member State, potentially for months, to carry out the community service.  He/She could be away from his/her family, perhaps lose a job and accommodation.  The consequences could be quite significant for the sentenced person.  Under this Bill, that person could have the community service order transferred to Ireland.  The person could return to the State, carry on working and living with family and carry out the community service under the supervision of the Irish Probation Service.  If he/she failed to comply with the community service order, the Probation Service could enforce the order through the Irish courts so the community protection element is there too.  


The Bill also provides for probation orders or community service orders imposed by the Irish courts on individuals who are not resident in the State, to transfer to that person’s home State if the person wishes to return home.  Take for example a Member State student studying in Ireland over the summer who commits an offence for which one year’s probation is imposed.  Under the provisions of this Bill, that order could be transferred to their Member State to allow him/her to return home and continue his/her studies while still undergoing the necessary probation supervision to divert him/her from further offending.


A probation decision may only be transferred under the Bill where the person has moved, or wants to move, back to his or her home State.  The Bill cannot be used to remove a person from one State to another if he or she does not wish to go.  The benefits for the individual are obvious and this is likely to encourage compliance with the probation decision.


In addition to probation and community service orders, the Bill also applies to other types of probation supervision, some of which can arise in respect of more serious offending.  These include suspended sentences, conditional release from prison and post release supervision orders.  This Bill allows for the transfer of serious offenders who may have served a lengthy prison sentence and are subject to several years of post-release supervision, into and out of the State.   This is perhaps an even more important aspect of the measure as rehabilitation is so important in such cases.  Having somewhere to live and family support will assist such offenders reintegrate into society and reduce the risk of reoffending.  Ultimately, communities are safer when probation is successful. 


I now propose to outline, in more detail, the content of the Bill, which contains 32 sections and largely reflects the EU Framework Decision.


Part 1 of the Bill contains a number of general provisions including provisions on commencement, interpretation, the application of the Bill, expenses and a power to make regulations.  Section 4 specifies that the courts and the Minister for Justice and Equality will be designated as the competent authorities for the purposes of the Framework Decision. 


Part 2 establishes the rules and procedures that will apply where Ireland is the state that issues the probation judgment.


Section 10 provides that a request to forward a probation judgment to another Member State may be initiated by either the Director of the Probation Service or the person who is the subject of the probation decision.  Section 11 provides that a probation judgment may only be forwarded to the Member State where the person habitually resides, with the person’s consent and when any appeal process has been completed. The Minister is not obliged to transfer a judgment to another Member State.  In limited circumstances, a judgment may be forwarded to a Member State other than that in which the person resides, with the consent of that State.


Sections 12 and 14 make provision for information flows between the State and the Member State in which the person normally resides, including the penalties that will be available if the person fails to comply with the probation conditions and any adaptations of the judgment that the other Member State intends to make.  Section 13 provides for the transfer of responsibility for the supervision of the person to the other Member State and section 15 provides for the circumstances in which the State may seek to have the person returned to the State, for example to face further charges


Part 3 of the Bill establishes the rules and procedures to apply where Ireland is the state executing the judgment, that is where the person subject to a probation order is coming into Ireland to have their probation supervised in this State.


Sections 17 to 19 define a number of important terms in the Part and set out the types of probation measures that the State may recognise and supervise under the Bill.  Sections 20 and 22 address a number of procedural steps which may be taken where documentation received is incomplete or sent to the wrong place.  These sections also establish evidential rules.  Section 21 permits the Minister to accept a request for transfer of a person who is not normally resident in the State but is an Irish citizen or has close ties to the State.


Sections 23 and 24 establish the procedure for accepting or refusing a request to transfer a sentenced person into the State.  The court is obliged to endorse the judgment unless specified grounds for refusal are present.  Grounds for refusal include incomplete documentation, immunity, specialist treatment not being available, lack of consent and the judgment falling outside the scope of the Framework Decision.  If the court endorses the judgment, section 28 provides that the Minister must recognise it and take the necessary steps to begin supervision of the person.


Sections 25 and 30 makes specific provision for judgments relating to a suspended sentence or conditional release to ensure that such judgments correspond with the comparable provisions in national law and comply with the requirements of the Framework Decision.

Sections 26 to 29 establish certain procedures that must be followed in respect of a judgment transferring into the State and section 31 provides that a person may not appeal the original judgment in the executing State.  Section 32 provides that responsibility for the judgment and the supervision of the person will transfer back to the issuing State if the person absconds or is prosecuted for another offence in that State.


As I previously mentioned, this is a lengthy and technical piece of legislation but its aims are straight-forward.  This Bill establishes a system to return non-resident offenders subject to probation measures to their home country.  It does this in order to support rehabilitation and ensure the necessary enforcement options are available to local authorities to safeguard the public.


I know that Members of this House are aware of the valuable work with offenders carried out by our Probation Service.  The Probation Service has been actively involved in preparing the proposals in this Bill and has the structures in place to begin operating the new procedures without delay.


It is difficult to estimate the number of people who may wish to transfer their probation supervision under a measure such as this, but it is not likely to be a very great number.  However, for those individuals who find themselves abroad, away from family and community supports, it will be a valuable tool to support rehabilitation and reintegration with the ultimate goal of providing safer communities.


I commend this Bill to the House and hope that Deputies will support it. 


Thank you.