Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Act 2019
Acts of the Oireachtas
Source: Acts of the Oireachtas

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paragraphs: (1) This Act may be cited as the Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Act 2019.
(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
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paragraphs: (1) In this Act—
“Act of 2006” means the Criminal Justice Act 2006 ;
“appropriate court” means—
(a) where an application is made under section 23 (1)(a) in relation to a judgment and, where applicable, the probation decision in respect of an offence which would, if dealt with under the law of the State, have been required to be tried by the Central Criminal Court, the High Court, and
(b) in any other case, the Circuit Court;
“Article 6 certificate” means the certificate—
(a) provided for in Article 6 of the Framework Decision, and
(b) the standard form of which is set out in Annex I to the Framework Decision;
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paragraphs: The provisions of this Act shall not apply in relation to a judgment given before the commencement of those provisions.
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paragraphs: (1) Subject to subsection (2), the Minister is designated as the competent authority in the State for the purposes of the Framework Decision.
(2) The appropriate court is designated as the competent authority in the State for the purposes of—
(a) Article 14 of the Framework Decision (but excluding any provision of that Article relating to the revocation of the decision on conditional release), and
(b) Article 20 of the Framework Decision in so far as it relates to subsequent decisions referred to in Article 14 of the Framework Decision (but excluding any provision of either Article relating to the revocation of the decision on conditional release).
(3) For the avoidance of doubt, the Minister is not acting in his or her capacity as the competent authority in the State for the purposes of the Framework Decision in performing his or her functions under section 1 (2), 5 (1) or (3), 6 or 19 (2) or (3).
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paragraphs: (1) The Minister may, by order, designate such persons as he or she considers appropriate to perform such functions for which the Minister is acting in his or her capacity as the competent authority in the State for the purposes of the Framework Decision as are specified in the order and different persons may be so designated to perform different functions for which the Minister is acting in such capacity.
(2) For so long as an order under subsection (1) remains in force, a reference in this Act to the Minister shall, in so far as it relates to the performance of a function specified in the order, be construed as a reference to the person designated by the order to perform the function concerned.
(3) The Minister shall, by notice in writing, inform the General Secretariat of the Council of the European Union of the making of an order under this section and of the names of the persons designated under the order.
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paragraphs: (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.
(2) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulation.
(3) Every order (other than an order under section 1 (2) or an order of a court) and regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
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paragraphs: Any expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.
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paragraphs: This Part applies where the State is the issuing state.
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paragraphs: In this Part—
“community service order” has the meaning assigned to it by section 3 of the Criminal Justice (Community Service) Act 1983 ;
“Director of the Probation Service” has the meaning assigned to it by section 1 of the Criminal Justice (Community Service) Act 1983 ;
“judgment in the State” means—
(a) an order under section 99(1) of the Act of 2006—
(i) pursuant to which a natural person enters into a recognisance referred to in that section, and
(ii) that has a condition specified in it requiring that person to be under the supervision of the Probation Service,
(b) a community service order made in respect of a natural person,
(c) an order under section 1 of the Probation of Offenders Act 1907 pursuant to which a natural person enters into a recognisance referred to in that section where such recognisance contains the condition first-mentioned in section 2(1) of that Act by virtue of a probation order referred to in such section 2(1),
(d) a recognisance referred to in section 28 (2)(a) of the Misuse of Drugs Act 1977—
(i) entered into by a natural person, and
(ii) that has a condition contained in it requiring that person to be under the supervision of the Probation Service,
(e) an order imposing a community sanction (within the meaning of section 115 of the Children Act 2001 ) on a natural person who is a child within the meaning of section 3 of that Act,
(f) a sentence involving post-release supervision imposed on a natural person under section 29 (1) of the Sex Offenders Act 2001 , or
(g) a sentence referred to in section 2 of the Act of 1960 imposed on a natural person who is, in respect of such sentence, the subject of a probation decision;
“probation decision”, in relation to a judgment referred to in paragraph (g) of the definition of “judgment in the State”, means a direction referred to in section 2 of the Act of 1960 pursuant to which the sentenced person is released from prison for a period which exceeds the remainder of the sentence of imprisonment referred to in such section 2 that would, but for such release, have to be served by the person;
“Probation Service” has the meaning assigned to it by section 1 of the Criminal Justice (Community Service) Act 1983 ;
“sentenced person”, in relation to a judgment in the State and, where applicable, the probation decision, means the natural person the subject of that judgment and, where applicable, that probation decision;
“subsequent decision”, in relation to a probation measure or alternative sanction imposed by a judgment in the State and, where applicable, the probation decision, means a decision—
(a) varying or revoking an obligation or instruction imposed by the probation measure or alternative sanction,
(b) in relation to a judgment which falls within paragraph (a) of the definition of “judgment in the State”, revoking the order concerned referred to in that paragraph,
(c) in relation to a judgment referred to in paragraph (g) of the definition of “judgment in the State”, revoking or varying the direction concerned referred to in section 2 of the Act of 1960, or
(d) in consequence of a failure by the sentenced person to comply with the probation measure or alternative sanction—
(i) enforcing a custodial sentence, or other measure involving the deprivation of liberty, imposed on the person, or
(ii) imposing a custodial sentence, or other measure involving the deprivation of liberty, on the person.
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paragraphs: (1) The Director of the Probation Service (within the meaning of section 1 of the Criminal Justice (Community Service) Act 1983 ) may make a request in writing to the Minister for the forwarding, in accordance with section 11 , to a Member State competent authority of a judgment in the State and, where applicable, the probation decision in respect of the sentenced person.
(2) The sentenced person in respect of a judgment in the State may make a request in writing to the Minister for the forwarding, in accordance with section 11 , to a Member State competent authority of that judgment and, where applicable, the probation decision.
(3) The sentenced person in respect of a judgment in the State may make a request in writing to the Minister for the forwarding, in accordance with section 11, to a Member State competent authority of that judgment and, where applicable, the probation decision notwithstanding that that Member State is not the Member State in which that person is lawfully and ordinarily residing as construed in accordance with section 11 (10).
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paragraphs: (1) On receipt of a request under section 10 (1) or (2), the Minister may forward, in accordance with subsection (8), the judgment in the State and, where applicable, the probation decision to which the request relates to the Member State competent authority to which the request relates if the Minister is satisfied that the sentenced person—
(a) is lawfully and ordinarily residing in the other Member State,
(b) has returned, or wants to return, to that State, and
(c) one of the following has occurred:
(i) the ordinary time for bringing an appeal against the judgment has expired without any such appeal having been made;
(ii) such appeal has been withdrawn or abandoned;
(iii) on any such appeal, that judgment was upheld.
(2) On receipt of a request under section 10 (3), the Minister may forward, in accordance with subsection (8), the judgment in the State and, where applicable, the probation decision to which the request relates to the Member State competent authority to which the request relates if the Minister is satisfied that—
(a) that Member State competent authority has consented to such forwarding, and
(b) one of the following has occurred:
(i) the ordinary time for bringing an appeal against the judgment has expired without any such appeal having been made;
(ii) such appeal has been withdrawn or abandoned;
(iii) on any such appeal, that judgment was upheld.
(3) (a) For the purposes of paragraph (c)(i) of subsection (1) or paragraph (b)(i) of subsection (2), the Minister may request the registrar or clerk of the court which gave the judgment in the State concerned to, where the ordinary time for bringing an appeal against the judgment has expired without any such appeal having been made, provide the Minister with a certificate signed by the registrar or clerk stating that the ordinary time for making an appeal against the judgment has expired without any such appeal having been made.
(b) For the purposes of paragraph (c)(ii) and (iii) of subsection (1) or paragraph (b)(ii) or (iii) of subsection (2), the Minister may request the registrar or clerk of the court to which an appeal against the judgment in the State concerned has been made to—
(i) advise the Minister whether—
(I) such appeal has been withdrawn or abandoned, or
(II) on such appeal, that judgment was upheld,
and
(ii) if the advice is that such is the case, provide the Minister with a certificate signed by the registrar or clerk stating that, as appropriate—
(I) such appeal has been withdrawn or abandoned, or
(II) on such appeal, that judgment was upheld.
(4) Subsection (5) applies if the Member State competent authority to which a judgment in the State and, where applicable, the probation decision has been forwarded under this section makes a request to the Minister to be provided with the judgment or a duly authenticated copy of the judgment.
(5) (a) The Minister shall comply with a request under subsection (4) as soon as is practicable.
(b) For the purposes of such compliance, the Minister may request the registrar or clerk of the court which gave the judgment in the State concerned to provide the Minister with that judgment or a duly authenticated copy of the judgment.
(6) The registrar or clerk of the court concerned the subject of a request under subsection (3) or (5)(b) shall comply with the request as soon as is practicable after he or she receives the request.
(7) The Minister shall, in deciding whether or not to forward under this section a judgment in the State and, where applicable, the probation decision to the Member State competent authority, have regard to the declarations made by the other Member State under Articles 5(4), 10(4) and 14(3) of the Framework Decision.
(8) Where the Minister has made a decision to forward under this section a judgment in the State and, where applicable, the probation decision to the Member State competent authority, the Minister shall—
(a) forward the judgment and, where applicable, the probation decision, accompanied by an Article 6 certificate (and, subject to subsection (11), a translation of the Article 6 certificate in a relevant language), signed by the Minister, directly to the Member State competent authority by any means capable of producing a record in writing under conditions allowing the Member State competent authority to establish the authenticity of the 2 (or, if applicable, 3 or 4) documents, and
(b) if the Member State competent authority makes a request to the Minister to provide the Member State competent authority with the original Article 6 certificate or original probation decision, provide the Member State competent authority—
(i) with that original Article 6 certificate or original probation decision, or
(ii) with a copy of that original Article 6 certificate or original probation decision certified by the Minister to be a true copy of that original.
(9) The Minister shall not forward under this section a judgment in the State and, where applicable, the probation decision together with the accompanying Article 6 certificate to more than one Member State competent authority at any one time.
(10) (a) Subject to paragraph (b), the sentenced person shall be deemed to be lawfully and ordinarily residing in another Member State if he or she were lawfully residing in that State immediately before the giving of the judgment in the State concerned.
(b) A period in which the sentenced person was remanded in custody, or serving a sentence of imprisonment or detention (in a children detention school within the meaning of section 3 of the Children Act 2001 or place provided under section 2 of the Prisons Act 1970 ), in the State shall be disregarded for the purposes of paragraph (a).
(11) The Minister is not required to forward a translation referred to in subsection (8)(a) of the Article 6 certificate concerned to the Member State competent authority if the Minister knows that the Member State competent authority does not require such translation.
(12) In this section, “relevant language”, in relation to a translation of an Article 6 certificate to be forwarded under this section to the Member State competent authority, means the official language or one of the official languages of the Member State.
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paragraphs: (1) Where a judgment in the State and, where applicable, the probation decision has been forwarded under section 11 to a Member State competent authority, the Minister may, at the same time as such forwarding or subsequently, make a request in writing to the Member State competent authority to inform the Minister of the maximum custodial sentence, or other measure involving the deprivation of liberty, that could be imposed on the sentenced person if he or she fails to comply with the probation measure or alternative sanction concerned.
(2) Subsection (3) applies where the Minister—
(a) receives information pursuant to a request under subsection (1), or
(b) after a judgment in the State and, where applicable, the probation decision has been forwarded under section 11 to a Member State competent authority, receives notice of a decision by the Member State competent authority to make an adaptation, in accordance with Article 9 of the Framework Decision, to the probation measure or alternative sanction concerned.
(3) Subject to subsections (4) and (5), the Minister may, after having regard to the information or adaptation referred to in subsection (2), decide to withdraw the Article 6 certificate concerned if the Minister is of the opinion that it would be in the public interest or the interests of justice to do so.
(4) The Minister shall not withdraw an Article 6 certificate under subsection (3) if the supervision of the probation measure or alternative sanction has already commenced in the executing state.
(5) The Minister shall, as soon as is practicable after making a decision under subsection (3) to withdraw an Article 6 certificate but, in any case, not later than 10 days after receiving the information or notice concerned referred to in subsection (2), give notice in writing of that decision to the Member State competent authority and the sentenced person.
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paragraphs: (1) Subject to subsection (3) and section 15 , subsection (2) applies where—
(a) the Member State competent authority recognises a judgment in the State and, where applicable, the probation decision forwarded under section 11 to that competent authority, and
(b) the Member State competent authority has informed the Minister of such recognition.
(2) (a) The State shall no longer have competence either in relation to the supervision of the probation measure or alternative sanction imposed by the judgment in the State and, where applicable, the probation decision or to take subsequent decisions on that probation measure or alternative sanction.
(b) The executing state shall have competence in relation to the supervision of the probation measure or alternative sanction imposed by the judgment in the State and, where applicable, the probation decision and to take subsequent decisions on that probation measure or alternative sanction.
(3) The competence referred to in subsection (2)(a) reverts back to the State, and the competence referred to in subsection (2)(b) ceases, immediately upon the receipt by the Member State competent authority of a notice under section 12 (5) of a decision under section 12(3) of the Minister to withdraw the Article 6 certificate concerned.
(4) (a) Paragraph (b) applies where the Minister receives a notice from the executing state that the executing state has refused to assume responsibility for a subsequent decision under Article 14(3) of the Framework Decision and, consequently, the Member State competent authority has, in so far as that subsequent decision is concerned, transferred jurisdiction back to the State in accordance with Article 14(4) of the Framework Decision.
(b) In so far as the subsequent decision is concerned, the competence referred to in subsection (2)(a) reverts back to the State, and the competence referred to in subsection (2)(b) ceases, immediately upon the receipt by the Minister of such notice.
(5) Where subsection (2), (3) or (4) applies in relation to a judgment in the State and, where applicable, the probation decision, the Minister shall, as soon as is practicable after that application, give notice in writing of that application to the court which gave the judgment.
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paragraphs: (1) The Minister shall inform the Member State competent authority, by any means capable of producing a record in writing, as soon as the Minister becomes aware, in relation to the judgment in the State and, where applicable, the probation decision concerned, of any circumstances or findings which, in the opinion of the Minister, could, if the Member State competent authority were aware of the circumstances or findings, result in one or more than one subsequent decision being taken by the Member State competent authority in relation to the sentenced person.
(2) Subsection (3) applies where the State, pursuant to Article 14(3) of the Framework Decision, has jurisdiction for a subsequent decision in relation to a judgment in the State and, where applicable, the probation decision.
(3) The Minister shall, as soon as is practicable after a subsequent decision to which this subsection applies is taken, inform, by any means capable of leaving a record in writing, the Member State competent authority of such decision.
(4) The court which makes an order (if any) which is a subsequent decision referred to in subsection (3) shall cause a certified copy of the order to be given to the Minister not later than 4 working days after the order is made.
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paragraphs: (1) Where, whilst the probation measure or alternative sanction concerned is being supervised by the executing state, the sentenced person is charged with an offence under the law of the State, the Minister may request the Member State competent authority to transfer the competence referred to in section 13 (2)(b), in so far as such competence relates to that probation measure or alternative sanction, back to the State pursuant to Article 20(2) of the Framework Decision.
(2) Subsections (3) to (5) apply where the Member State competent authority transfers, in relation to the probation measure or alternative sanction concerned, the competence referred to in section 13 (2)(b) back to the State—
(a) in accordance with Article 20(1) of the Framework Decision, or
(b) in accordance with Article 20(2) of the Framework Decision following the receipt by the Member State competent authority of a request under subsection (1) made by the Minister.
(3) (a) The State shall resume the competence referred to in section 13 (2)(b) in relation to the probation measure or alternative sanction concerned.
(b) The Minister may, for the purposes of subsection (4), request the Member State competent authority to provide the Minister with information relating to—
(i) the duration and degree of compliance by the sentenced person with the probation measure or alternative sanction in the executing state, and
(ii) any subsequent decisions taken by the executing state in respect of the probation measure or alternative sanction.
(4) The Minister and the appropriate court shall each take account of any information provided to the Minister pursuant to a request under subsection (3) for the further supervision of the probation measure or alternative sanction concerned and in respect of subsequent decisions on the probation measure or alternative sanction.
(5) Where the State has, under subsection (3), resumed jurisdiction in the competence referred to in section 13 (2)(b) in relation to the probation measure or alternative sanction concerned, the Minister shall—
(a) if the resumption is pursuant to a request under subsection (1), as soon as is practicable after such resumption, give notice in writing of the resumption to the sentenced person, or
(b) if the resumption is pursuant to Article 20(1) of the Framework Decision, make all reasonable efforts to give notice in writing of such resumption to the sentenced person.
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paragraphs: This Part applies where—
(a) the State is the Member State to which a judgment and, where applicable, the probation decision has been forwarded by the competent authority in the issuing state in accordance with Article 5 of the Framework Decision, or
(b) the State is the executing state.
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paragraphs: (1) In this Part—
“revenue offence”, in relation to an issuing state, means an offence in connection with taxes, duties, customs or exchange control;
“sentenced person”, in relation to a judgment and, where applicable, the probation decision, means the natural person the subject of that judgment and, where applicable, that probation decision.
(2) Subject to subsections (3) and (5), a natural person who lawfully had his or her principal residence in the State for the 12 months immediately preceding the date of receipt by the Minister of a judgment and, where applicable, the probation decision in respect of that person forwarded by the competent authority in the issuing state in accordance with section 20 is, for the purposes of this Part, taken to be lawfully and ordinarily residing in the State on the date of such receipt.
(3) Subject to subsection (4), in the case of a suspended sentence or conditional release, a natural person shall not be taken to be lawfully and ordinarily residing in the State for the purposes of this Part unless the person lawfully had his or her principal residence in the State for the 12 months immediately preceding the imposition of the suspended sentence or, as the case may be, the custodial sentence to which the conditional release relates.
(4) For the purposes of determining whether a natural person had his or her principal residence in the State for the 12 months immediately preceding the imposition of a suspended sentence or, as the case may be, the custodial sentence to which a conditional release relates, any period during which the person was remanded in custody prior to the trial which gave rise to the suspended sentence or custodial sentence shall be disregarded.
(5) For the purposes of determining whether a natural person had his or her principal residence in the State for the 12 months immediately preceding the imposition, pursuant to a judgment, of a non-custodial sentence (not being a non-custodial sentence in addition to a custodial sentence imposed by the judgment), any period during which the person was remanded in custody prior to the trial which gave rise to the non-custodial sentence shall be disregarded.
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paragraphs: For the purposes of this Part—
(a) an offence under the law of the issuing state corresponds to an offence under the law of the State where the act or omission constituting the offence under the law of the issuing state would, if committed or made in the State, constitute an offence under the law of the State, and
(b) an offence under the law of the State corresponds to an offence under the law of the issuing state where the act or omission constituting the offence under the law of the State would, if committed or made in the issuing state, constitute an offence under the law of the issuing state.
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paragraphs: (1) This Part shall apply to the following probation measures and alternative sanctions:
(a) an obligation on the sentenced person to inform a specific authority of any change of residence or working place;
(b) an obligation on the sentenced person not to enter certain localities, places or defined areas in the issuing state or the State;
(c) an obligation on the sentenced person containing limitations on leaving the territory of the State;
(d) instructions concerning the sentenced person relating to behaviour, residence, education and training, leisure activities, or containing limitations on or modalities of carrying out a professional activity (but not including a professional disqualification imposed on the sentenced person as part of the measure or sanction);
(e) an obligation on the sentenced person to report at specified times to a specific authority;
(f) an obligation on the sentenced person to avoid contact with specific persons;
(g) an obligation on the sentenced person to avoid contact with specific objects which have been used, or are likely to be used, by the sentenced person with a view to committing an offence;
(h) an obligation on the sentenced person to compensate financially for the prejudice caused by the offence which gave rise to the judgment concerned, or an obligation to provide proof of compliance with the first-mentioned obligation, or both;
(i) an obligation on the sentenced person to carry out community service;
(j) an obligation on the sentenced person to co-operate with a probation officer or with a representative of a social service having responsibilities in respect of sentenced persons;
(k) an obligation on the sentenced person to undergo therapeutic treatment or treatment for addiction;
(l) subject to subsection (2), a probation measure or alternative sanction prescribed for the purposes of this paragraph.
(2) For the purposes of prescribing a probation measure or alternative sanction, the Minister shall have regard to—
(a) Article 1 of the Framework Decision, in particular facilitating the social rehabilitation of sentenced persons, and
(b) advice given by the Director of the Probation Service to the Minister that—
(i) there is such a measure or sanction in another Member State which does not presently fall within subsection (1), and
(ii) the Probation Service is in a position to supervise such measure or sanction.
(3) The Minister shall, as soon as is practicable after a probation measure or alternative sanction is prescribed for the purposes of subsection (1)(l), by notice in writing given to the General Secretariat of the Council of the European Union, inform the General Secretariat that the State is prepared to supervise that measure or sanction, as the case may be.
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paragraphs: (1) Subsection (2) applies if one or more than one of the following matters (in this section referred to as a “relevant matter”) arises:
(a) a judgment and, where applicable, the probation decision forwarded to the Minister pursuant to Article 5 of the Framework Decision is not accompanied by—
(i) an Article 6 certificate, or
(ii) if the Article 6 certificate is in a language other than the Irish language or the English language, a translation of that certificate in the Irish language or the English language;
(b) the Minister considers that an Article 6 certificate accompanying a judgment and, where applicable, the probation decision forwarded to the Minister pursuant to Article 5 of the Framework Decision—
(i) is incomplete, or
(ii) obviously does not correspond to that judgment and, where applicable, that decision.
(2) The Minister shall, as soon as is practicable after a relevant matter arises, by notice in writing given to the competent authority in the issuing state—
(a) inform the competent authority in the issuing state of the relevant matter, and
(b) specify a reasonable period of time within which the competent authority in the issuing state may take the necessary remedial action in relation to the relevant matter.
(3) Subsection (4) applies if a document forwarded to the Minister for the purposes of this Part has been directly forwarded to the Minister by a means which has left a record in writing of that document under conditions allowing the Minister to establish the authenticity of that document.
(4) The record in writing of the document shall be deemed to be the document that was forwarded.
(5) For the purposes of this Part, a document shall be deemed to be a true copy of an original document if it has been certified as a true copy of the original document by the competent authority in the issuing state.
(6) In proceedings to which this Part applies, a document shall be received in evidence without further proof if the document purports to be—
(a) a judgment given by the competent authority in the issuing state,
(b) a probation decision taken by the competent authority in the issuing state,
(c) an Article 6 certificate issued by the competent authority in the issuing state or a translation referred to in subsection (1)(a)(ii) of the Article 6 certificate, or
(d) a true copy of such judgment, probation decision, Article 6 certificate or translation.
(7) In proceedings to which this Part applies, a document that purports to be a true copy of a judgment, probation decision or Article 6 certificate referred to in subsection (6) shall, unless the contrary is shown, be evidence of the judgment, probation decision or certificate concerned, as the case may be.
num: 21
paragraphs: Notwithstanding that the sentenced person concerned is not lawfully and ordinarily residing in the State, the Minister may consent to the forwarding by the Member State competent authority of a judgment, and where applicable, the probation decision in respect of that person in accordance with Article 5 of the Framework Decision if—
(a) the person is an Irish citizen, or
(b) in the opinion of the Minister, the person has close ties with the State and it is in the interests of the person’s social rehabilitation to do so.
num: 22
paragraphs: (1) Subsection (2) applies where—
(a) a court,
(b) a Minister (other than the Minister for Justice and Equality), or
(c) any person performing, on behalf of the State, any function of government or discharging, on behalf of the State, public duties in relation to public administration,
receives a relevant document directly from the competent authority of the issuing state.
(2) The court, Minister or person referred to in subsection (1) shall—
(a) forward the relevant document to the Minister, and
(b) as soon as is practicable, inform the competent authority of the issuing state, by any means capable of producing a record in writing, of the action taken referred to in paragraph (a).
(3) In this section, “relevant document” means—
(a) a judgment,
(b) a probation decision,
(c) an Article 6 certificate, or
(d) a translation of an Article 6 certificate.
num: 23
paragraphs: (1) Subject to subsections (2) and (3), the Minister shall, after the Minister has received a judgment and, where applicable, the probation decision pursuant to Article 5 of the Framework Decision—
(a) subject to subsection (9), make an application, on notice to the sentenced person, the Probation Service and the superintendent of the Garda SÃ­ochÃ¡na for the district in which the sentenced person resides or will reside, to the appropriate court for the recognition under section 24 of that judgment and, where applicable, that probation decision, or
(b) subject to subsection (10), refuse to recognise, on one or more than one of the grounds specified in any of subsections (5) to (7), that judgment and, where applicable, that probation decision for the purposes of the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned.
(2) The Minister may postpone taking action under subsection (1) in respect of the judgment and, where applicable, the probation decision referred to in that subsection if any necessary remedial action referred to in section 20 (2)(b) still needs to be taken, within the reasonable period of time referred to in that section specified in the notice concerned under section 20 (2) given to the competent authority in the issuing state, as regards the Article 6 certificate that accompanied, or that should have accompanied, that judgment and, where applicable, that probation decision.
(3) The Minister shall, before taking action under subsection (1), consult with the Probation Service and the Garda SÃ­ochÃ¡na.
(4) Where the Minister receives a judgment and, where applicable, the probation decision, together with the accompanying Article 6 certificate, pursuant to Articles 5 and 6 of the Framework Decision, the Minister shall, if requested to do so by the competent authority in the issuing state, inform the competent authority in the issuing state of the maximum term of imprisonment, or other deprivation of liberty, that could be imposed on the sentenced person if he or she fails to comply with the probation measure or alternative sanction concerned.
(5) Subject to subsection (8), the Minister may refuse to recognise a judgment and, where applicable, the probation decision if one or more than one of the following grounds applies:
(a) a relevant matter within the meaning of section 20 (1) applies in relation to the Article 6 certificate which accompanied, or which should have accompanied, that judgment and, where applicable, that probation decision, and the reasonable period of time specified in the notice concerned under section 20 (2) given to the competent authority in the issuing state in respect of that matter has expired without the necessary remedial action referred to in section 20 (2)(b) having been taken in respect of that matter;
(b) that Article 6 certificate includes a probation measure or alternative sanction that does not fall within section 19 (1);
(c) the sentenced person, by virtue of any Act of the Oireachtas, is, under the law of the State, immune from prosecution for an offence consisting of an act or omission that constitutes, whether in whole or in part, the offence to which the judgment and, where applicable, the probation decision relates;
(d) the judgment and, where applicable, the probation decision provides for medical or therapeutic treatment which, in the opinion of the Minister and notwithstanding section 24 (2), it would be impossible or impracticable for the State to provide or supervise;
(e) subject to subsection (6), the judgment and, where applicable, the probation decision relates to an offence which is regarded under the law of the State as having been committed wholly or for an essential part in the State.
(6) The Minister may refuse to recognise a judgment and, where applicable, the probation decision on the ground referred to in subsection (5)(e) in relation to an offence committed partly in the State only in exceptional circumstances, having regard to the specific circumstances of the case, and in particular to whether a major or essential part of the conduct concerned took place in the issuing state.
(7) Subject to section 21 and subsection (8), the Minister shall refuse to recognise a judgment and, where applicable, the probation decision if one or more than one of the following grounds applies:
(a) the sentenced person has not returned and does not want to return to the State;
(b) the Minister has not consented to the forwarding of the judgment and, where applicable, the probation decision in respect of the sentenced person where such person is not lawfully and ordinarily residing in the State;
(c) it is immediately clear from the information provided in the Article 6 certificate concerned that recognition of the judgment and, where applicable, the probation decision would infringe the ne bis in idem principle;
(d) the judgment and, where applicable, the probation decision relates to an offence under the law of the issuing state which does not correspond to an offence under the law of the State;
(e) the offence under the law of the issuing state to which the judgment relates corresponds to an offence under the law of the State in respect of which a person of the same age as the sentenced person could not be proceeded against by reason of his or her age at the time of the offence;
(f) the sentenced person did not appear in person at the proceedings resulting in the judgment unless the Article 6 certificate accompanying the judgment indicates the matters required by points 2, 3 and 4 of point (h) of Annex I to the Framework Decision;
(g) the probation measure or alternative sanction concerned is of less than 6 months’ duration or the remaining duration of the measure or sanction is less than 6 months.
(8) In the case referred to in subsection (5) or (7), the Minister may, by any means capable of producing a record in writing, request the competent authority in the issuing state to supply the Minister with any additional information required as soon as is practicable, before the Minister decides not to recognise a judgment and, where applicable, the probation decision for the purposes of the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned.
(9) Where the appropriate court for the purposes of an application under subsection (1)(a) is the Circuit Court, the application shall be made to the judge of the Circuit designated for that purpose by the President of the Circuit Court.
(10) The Minister shall not refuse to recognise a judgment and, where applicable, the probation decision on the ground that, in relation to a revenue offence—
(a) no tax or duty of the kind to which the offence relates is imposed in the State, or
(b) the rules relating to taxes, duties, customs or exchange control that apply in the issuing state differ in nature from the rules that apply in the State to taxes, duties, customs or exchange control.
num: 24
paragraphs: (1) Subsection (2) applies where an application under section 23 (1)(a) is made to the appropriate court and the appropriate court is satisfied that the judgment and, where applicable, the probation decision the subject of the application comply with the provisions of this Part applicable to that judgment and, where applicable, that probation decision.
(2) Subject to subsections (3) to (10) and sections 25 and 30 , the appropriate court—
(a) subject to paragraphs (b) and (c), shall make an order endorsing the judgment and, where applicable, the probation decision for the purpose of their recognition and the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned,
(b) if it is of the opinion that the probation measure or alternative sanction concerned is, by its nature, incompatible with the law of the State, may—
(i) adapt the measure or sanction to that of a measure or sanction prescribed by the law of the State for an offence which corresponds to the offence for which the probation measure or alternative sanction was imposed, and
(ii) specify the adaptations concerned in the order referred to in paragraph (a),
and
(c) if it is of the opinion that the period of duration of the probation measure or alternative sanction concerned is incompatible with the law of the State, may—
(i) adapt that period to that of a period of duration of a measure or sanction, as the case may be, prescribed by the law of the State for an offence which corresponds to the offence for which the probation measure or alternative sanction was imposed, and
(ii) specify the adaptations concerned in the order referred to in paragraph (a).
(3) (a) The nature of the probation measure or alternative sanction as adapted under subsection (2)(b) shall, in so far as is practicable, correspond with the nature of the probation measure or alternative sanction before such adaptation.
(b) The adaptation under subsection (2)(b) of the probation measure or alternative sanction shall not be done in such a way as to—
(i) aggravate the probation measure or alternative sanction, or
(ii) cause the maximum penalty prescribed by the law of the State, for an offence which corresponds to the offence for which the probation measure or alternative sanction was imposed, to be exceeded.
(4) (a) The period of duration of the probation measure or alternative sanction as adapted under subsection (2)(c) shall, in so far as is practicable, correspond with the period of duration of the probation measure or alternative sanction before such adaptation.
(b) The adaptation under subsection (2)(c) of the period of duration of the probation measure or alternative sanction shall not be done in such a way as to—
(i) aggravate the probation measure or alternative sanction, or
(ii) cause the maximum penalty prescribed by the law of the State for an offence which corresponds to the offence for which the probation measure or alternative sanction was imposed to be exceeded.
(c) Where the period of duration of the probation measure or alternative sanction exceeds the maximum period of duration prescribed by the law of the State for an offence corresponding to the offence for which the probation measure or alternative sanction was imposed, the adaptation under subsection (2)(c) of the first-mentioned period shall be the same as the second-mentioned period.
(5) An order under subsection (2)(a) shall specify—
(a) the measure or sanction under the law of the State to which the probation measure or alternative sanction concerned corresponds, and
(b) the court before which any subsequent proceedings relating to the probation measure or alternative sanction are to be brought.
(6) Subject to subsections (9), and (10), the appropriate court may refuse to endorse a judgment and, where applicable, the probation decision if one or more than one of the following grounds applies:
(a) a relevant matter within the meaning of section 20 (1) applies in relation to the Article 6 certificate which accompanied, or which should have accompanied, that judgment and, where applicable, that probation decision and the reasonable period of time specified in the notice concerned under section 20 (2) given to the competent authority in the issuing state in respect of that matter has expired without the necessary remedial action referred to in section 20 (2)(b) having been taken in respect of that matter;
(b) that Article 6 certificate includes a probation measure or alternative sanction that does not fall within section 19 (1);
(c) the sentenced person, by virtue of any Act of the Oireachtas, is, under the law of the State, immune from prosecution for an offence consisting of an act or omission that constitutes, whether in whole or in part, the offence to which the judgment and, where applicable, the probation decision relates;
(d) the judgment and, where applicable, the probation decision provides for medical or therapeutic treatment which, in the opinion of the appropriate court and notwithstanding section 24 (2), it would be impossible or impracticable for the State to provide or supervise;
(e) subject to subsection (7) , the judgment and, where applicable, the probation decision relates to an offence which is regarded under the law of the State as having been committed wholly or for an essential part in the State.
(7) The appropriate court may refuse to endorse a judgment and, where applicable, the probation decision on the ground referred to in subsection (6)(e) in relation to an offence committed partly in the State only in exceptional circumstances, having regard to the specific circumstances of the case, and in particular to whether a major or essential part of the conduct concerned took place in the issuing state.
(8) Subject to section 21 and subsections (9) and (10), the appropriate court shall refuse to endorse a judgment and, where applicable, the probation decision if one or more than one of the following grounds applies:
(a) the sentenced person has not returned and does not want to return to the State;
(b) the Minister has not consented to the forwarding of the judgment and, where applicable, the probation decision in respect of the sentenced person where such person is not lawfully and ordinarily residing in the State;
(c) it is immediately clear from the information provided in the Article 6 certificate concerned that endorsement of the judgment and, where applicable, the probation decision would infringe the ne bis in idem principle;
(d) the judgment and, where applicable, the probation decision relates to an offence under the law of the issuing state which does not correspond to an offence under the law of the State;
(e) the offence under the law of the issuing state to which the judgment relates corresponds to an offence under the law of the State in respect of which a person of the same age as the sentenced person could not be proceeded against by reason of his or her age at the time of the offence;
(f) the sentenced person did not appear in person at the proceedings resulting in the judgment unless the Article 6 certificate accompanying the judgment indicates the matters required by points 2, 3 and 4 of point (h) of Annex I to the Framework Decision;
(g) the probation measure or alternative sanction is of less than 6 months’ duration or the remaining duration of the measure or sanction is less than 6 months.
(9) In a case referred to in subsection (6) or (8), the appropriate court may request the Minister to obtain from the competent authority in the issuing state any additional information required by the appropriate court as soon as is practicable, before the appropriate court refuses to endorse a judgment and, where applicable, the probation decision for the purposes of the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned.
(10) The appropriate court shall not refuse to endorse a judgment and, where applicable, the probation decision on the ground that, in relation to a revenue offence—
(a) no tax or duty of the kind to which the offence relates is imposed in the State, or
(b) the rules relating to taxes, duties, customs or exchange control that apply in the issuing state differ in nature from the rules that apply in the State to taxes, duties, customs or exchange control.
num: 25
paragraphs: (1) Without prejudice to the generality of section 24 , where the appropriate court makes an order under section 24 (2) in relation to a judgment and, where applicable, the probation decision relating to a suspended sentence, the order shall specify—
(a) that the suspended sentence corresponds to a suspended sentence under section 99 of the Act of 2006, and
(b) the prison to which the sentenced person is to be committed if the suspension of the sentence is revoked in accordance with section 99(10) or (17) of the Act of 2006.
(2) Without prejudice to the generality of section 24 , where the appropriate court makes an order under section 24 (2) in relation to a judgment and, where applicable, the probation decision relating to a conditional release, the order shall specify—
(a) that the conditional release corresponds to a direction given by the Minister under section 2 of the Act of 1960, and
(b) the place to which the sentenced person shall be taken if he or she is arrested under section 7 of the Act of 1960.
(3) Subject to section 30 , the effect of an order under section 24 (2) in relation to a judgment and, where applicable, the probation decision relating to a suspended sentence or conditional release shall be to authorise the enforcement by the State of the custodial sentence to which the judgment and, where applicable, the probation decision relates in its nature and duration, less the period of the sentence actually served by the sentenced person in the issuing state or elsewhere, with due regard to any remission of sentence accrued in the issuing state if—
(a) the sentenced person fails to comply with a condition of the suspended sentence or conditional release, or
(b) in the case of a suspended sentence, the sentenced person is convicted of an offence in the circumstances specified in section 99(9) of the Act of 2006.
num: 26
paragraphs: (1) Subject to subsection (3), the Minister shall make an application under section 23 (1)(a) as soon as is practicable and, in any event, in sufficient time to enable the appropriate court to decide on the application—
(a) subject to paragraph (b), within a period of 60 days of the receipt by the Minister of a judgment and, where applicable, the probation decision together with the accompanying Article 6 certificate, or
(b) in a case to which section 20 (1) and (2) applies to the Article 6 certificate, within a period of 60 days of the remedial action concerned referred to in section 20 (2)(b) being taken.
(2) Subject to subsection (3), the Minister shall make a decision referred to in section 23 (1)(b) as soon as is practicable and, in any event—
(a) subject to paragraph (b), within a period of 60 days of the receipt by the Minister of a judgment and, where applicable, the probation decision together with the accompanying Article 6 certificate, or
(b) in a case to which section 20 (1) and (2) applies to the Article 6 certificate, within a period of 60 days of the remedial action concerned referred to in section 20 (2)(b) being taken.
(3) When, in exceptional circumstances, it is not possible for the Minister to comply with the time limit provided for in subsection (1) or (2), the Minister shall, as soon as is practicable, inform the competent authority in the issuing state, by any means capable of producing a record in writing, of—
(a) that delay,
(b) the reasons for the delay, and
(c) the estimated time needed for a final decision to be taken on the judgment and, where applicable, the probation decision concerned.
(4) When making an application under section 23 (1)(a), the Minister shall inform the appropriate court of—
(a) subject to paragraph (b), the date of the receipt by the Minister of the judgment and, where applicable, the probation decision together with the accompanying Article 6 certificate the subject of the application, or
(b) in a case to which section 20 (1) and (2) applies to the Article 6 certificate, the date (if any) that that section ceased to apply to the certificate.
(5) Subject to subsection (6), the appropriate court shall decide on an application under section 23 (1)(a) as soon as is practicable and, in any event—
(a) subject to paragraph (b), within the period of 60 days of the receipt by the Minister of the judgment and, where applicable, the probation decision together with the accompanying Article 6 certificate the subject of the application, or
(b) in a case to which section 20 (1) and (2) applies to the Article 6 certificate, within the period of 60 days of the remedial action concerned referred to in section 20 (2)(b) being taken.
(6) When, in exceptional circumstances, it is not possible for the appropriate court to comply with the time limit provided for in subsection (5), it shall, as soon as is practicable, cause the Minister to be informed of—
(a) that delay,
(b) the reasons for the delay, and
(c) the estimated time needed for a final decision to be taken on the judgment and, where applicable, the probation decision concerned.
(7) The Minister shall, as soon as is practicable after the receipt of information under subsection (6), by any means capable of leaving a record in writing, give that information to the competent authority in the issuing state.
num: 27
paragraphs: Where the appropriate court has made an order under section 24 (2), it shall cause a certified copy of the order, to which is annexed a copy of the judgment and, where applicable, the probation decision the subject of the order to be sent, within 4 working days of the making of the order, to—
(a) the sentenced person,
(b) the Minister,
(c) the Director of the Probation Service, and
(d) the superintendent of the Garda SÃ­ochÃ¡na for the district in which the sentenced person resides or will reside.
num: 28
paragraphs: (1) Where an order under section 24 (2) has been made in respect of a judgment and, where applicable, the probation decision, the Minister shall—
(a) recognise, for the purposes of the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned, the judgment and, where applicable, the probation decision the subject of the order, and
(b) as soon as is practicable, take all necessary steps for the supervision of the probation measure or alternative sanction.
(2) A probation measure or alternative sanction endorsed by an order of the appropriate court under section 24 (2) shall be deemed, for the purposes of the law of the State, to be a measure or sanction under the law of the State as specified pursuant to section 24 (5) and shall have the same effect as if it were such a measure or sanction.
(3) Subject to section 30, any subsequent proceedings relating to a probation measure or alternative sanction endorsed by an order of the appropriate court under section 24(2) shall be brought before the court specified pursuant to section 24 (5)(b) for the bringing of subsequent proceedings relating to the probation measure or alternative sanction.
(4) A court which makes an order in subsequent proceedings relating to a probation measure or alternative sanction endorsed by an order of the appropriate court under section 24 (2) shall cause, within 4 working days of the date of the making of the order, a certified copy of the order to be sent to the Minister.
num: 29
paragraphs: (1) The Minister shall immediately notify the competent authority in the issuing state, by any means capable of producing a record in writing, of any of the following:
(a) the recognition by the Minister under section 28 of a judgment and, where applicable, the probation decision for the purposes of the assumption by the State of responsibility for supervising the probation measure or alternative sanction concerned;
(b) any decision of the Minister referred to in section 23 (1)(b), together with the reasons for the decision;
(c) any decision of the appropriate court under section 24 not to endorse a judgment and, where applicable, the probation decision, together with the reasons for the decision;
(d) an order of the appropriate court under section 24 (2) adapting a probation measure or alternative sanction, together with the reasons for the adaptation;
(e) if section 30 applies to a judgment and, where applicable, the probation decision, that the State will not assume responsibility for making a relevant decision within the meaning of section 30 (1).
(2) The Minister shall without delay inform the competent authority in the issuing state, by any means capable of producing a record in writing, of any of the following:
(a) the forwarding of a relevant document (within the meaning of section 22 (3)) under section 22 to the Minister;
(b) the non-commencement or discontinuance of the supervision of the probation measure or alternative sanction concerned due to an amnesty, pardon or remission of punishment having been granted under the law of the State or the issuing state to the sentenced person in respect of the offence to which the judgment and, where applicable, the probation decision relates.
(3) Where, because the sentenced person cannot be found in the State after the forwarding of the judgment and, where applicable, the probation decision together with the accompanying Article 6 certificate to the Minister pursuant to Articles 5 and 6 of the Framework Decision, it is in practice impossible for the probation measure or alternative sanction concerned to be supervised by the State, the Minister shall, as soon as is practicable, inform the competent authority in the issuing state, by any means capable of producing a record in writing, of that fact.
(4) Where a judgment and, where applicable, the probation decision have been recognised by the Minister under section 28 (other than a judgment and, where applicable, the probation decision to which section 30 (1) applies), the Minister shall, as soon as is practicable, inform the competent authority in the issuing state, by any means capable of producing a record in writing, of any subsequent decision—
(a) modifying the probation measure or alternative sanction concerned,
(b) revoking the suspension of the execution of the judgment,
(c) revoking the decision on conditional release, or
(d) in consequence of a failure by a sentenced person to comply with the probation measure or alternative sanction—
(i) enforcing a custodial sentence, or other measure involving the deprivation of liberty, on the person, or
(ii) imposing a custodial sentence, or other measure involving the deprivation of liberty, on the person.
(5) Subject to subsections (6) and (7), the Minister shall, as soon as is practicable, notify the competent authority in the issuing state which has jurisdiction for a relevant decision within the meaning of section 30 (1), pursuant to the application of section 30 , of—
(a) any finding which is likely to result in the revocation of the decision on conditional release,
(b) all further facts and circumstances which the competent authority in the issuing state requests to be provided, or
(c) all further facts and circumstances, knowledge of which is essential in order to allow the competent authority in the issuing state to take such relevant decision in accordance with its national law.
(6) The Minister shall give notice of the finding referred to in subsection (5)(a) using the form set out in Annex II to the Framework Decision.
(7) The Minister shall give notice of the facts and circumstances referred to in paragraph (b) or (c) of subsection (5) by any means which is capable of producing a record in writing (including, if practicable, by using the form set out in Annex II to the Framework Decision).
num: 30
paragraphs: (1) This section applies where—
(a) the judgment and, where applicable, the probation decision relates to a conditional release to which section 25 (2) applies, and
(b) under the law of the issuing state, the sentenced person must be given a judicial hearing before a decision (in this section referred to as a “relevant decision”) is taken on the revocation of the decision on the conditional release.
(2) Where the appropriate court makes an order under section 24 (2), it shall specify in the order that the State shall not assume responsibility for taking a relevant decision.
(3) The Minister shall transfer jurisdiction back to the competent authority in the issuing state where the Minister is of the opinion that—
(a) the sentenced person has not complied with the probation measure or alternative sanction endorsed by an order under section 24 (2) and to which this section applies, and
(b) a relevant decision needs to be taken.
(4) This section shall not affect the operation of section 28 .
(5) Where the sentenced person is to give evidence at a judicial hearing in the issuing state, sections 68 to 72 of the Criminal Justice (Mutual Assistance) Act 2008 shall, with all necessary notifications, apply for the purposes of such hearing.
num: 31
paragraphs: A person may not appeal in the State against a judgment which forms the basis for a probation measure or alternative sanction to which this Part applies.
num: 32
paragraphs: (1) The Minister may transfer jurisdiction in respect of the supervision of the probation measure or alternative sanction concerned and in respect of all subsequent decisions referred to in Article 14 of the Framework Decision relating thereto back to the competent authority in the issuing state if—
(a) the Minister is satisfied on reasonable grounds that the sentenced person has absconded or is no longer lawfully and ordinarily residing in the State, or
(b) new criminal proceedings are brought against the sentenced person in the issuing state and the competent authority in the issuing state so requests.
(2) On and from the date of the transfer of jurisdiction back to the competent authority in the issuing state under subsection (1), the State shall no longer have jurisdiction in respect of the supervision of the probation measure or alternative sanction concerned or in respect of any subsequent decisions referred to in Article 14 of the Framework Decision relating thereto.
(3) The Minister shall notify the court specified in section 24 (5)(b) of the transfer of jurisdiction under subsection (1) within 4 working days of the transfer having been effected.