Interpreting the Irish Transfer of Sentenced Persons Act: The Role of Foreign Law, International Law, and the Constitution

Abstract

The Republic of Ireland has many foreign national offenders in its prisons. There are also many Irish nationals who are imprisoned abroad. In order to facilitate the transfer of foreign nationals from Irish prisons to serve their sentences in their countries of nationality or citizenship and also the transfer of Irish nationals to serve their sentences in Ireland, the Transfer of Sentenced Persons Act was enacted. Ireland also ratified the Council of Europe�s Convention on the Transfer of Sentenced Persons and adopted Council Framework Decision 2008/909/JHA. Irish courts have interpreted some of the provisions of this Act. The purposes of this article are to show the conditions that have to be met for the transfer to take place and how foreign law, international law, and the constitution have been invoked by courts in their interpretation of the Act and in particular with regard to the issues of the offender�s right to family life and to liberty. The author argues, inter alia, that in one of the cases where the provision was ambiguous or obscure, the Irish High Court and Supreme Court could have referred to the drafting history of the Act in interpreting such a provision.