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29 2007

Criminal Justice Act 2007

PART 3

Sentencing

Interpretation (Part 3).

24 .— (1) In this Part—

“ imprisonment ” includes—

(a) detention in Saint Patrick’s Institution,

(b) detention in a place provided under section 2 of the Prisons Act 1970 , and

(c) detention in a place specified under section 3 of the Prisons Act 1972 ,

and “ prison ” and “ sentence of imprisonment ” shall be construed accordingly;

“ remission from the sentence ” means, in relation to the sentence imposed on a person, the remission which he or she may earn from that sentence under the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct.

(2) In this Part, references to an offence specified in Schedule 2 shall include—

(a) references to participation as an accomplice of a person who commits such an offence, and

(b) references to an offence of attempting or conspiring to commit, or inciting the commission of, such an offence.

Commission of another offence within specified period.

25 .— (1) Subject to subsections (2) and (3), where a person (other than a person under the age of 18 years)—

(a) has been convicted on indictment of an offence specified in Schedule 2 (in this section referred to as “the first offence”),

(b) has been sentenced to imprisonment for a term of not less than 5 years in respect of that offence, and

(c) who is convicted on indictment of an offence specified in Schedule 2 (in this section referred to as “the subsequent offence”) that is committed—

(i) during the period of 7 years from the date of conviction of the first offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or

(ii) during any such period of imprisonment,

(in this section the total period comprising the periods referred to in subparagraphs (i) and (ii) is referred to as “the specified period”),

the court shall, in imposing sentence on the person in respect of the subsequent offence, specify as the minimum term of imprisonment to be served by the person, a term of not less than three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence and, if the maximum term so prescribed is life imprisonment, the court shall specify a term of imprisonment of not less than 10 years.

(2) Subsection (1) shall not apply if any of the following provisions apply in respect of the subsequent offence:

(a) section 2 of the Criminal Justice Act 1990 ;

(b) section 15(8) of the Act of 1925;

(c) section 26(8), 27(8), 27A(8) or 27B(8) of the Act of 1964;

(d) section 12A(13) of the Act of 1990; or

(e) section 27(3F) of the Misuse of Drugs Act 1977 .

(3) Subsection (1) shall not apply where the court is satisfied that it would be disproportionate in all the circumstances of the case to specify as the minimum term of imprisonment to be served by the person concerned the term of imprisonment referred to in that subsection in respect of the subsequent offence.

(4) Subsection (1) shall apply to a person in respect of the subsequent offence only if that offence is committed after the commencement of this section and that subsection shall apply to a person whether the first offence is committed before or after such commencement.

(5) If, in relation to a sentence of a term of imprisonment imposed on a person in respect of the first offence—

(a) the operation of the whole term is suspended, then subsection (1) shall not apply to that offence, or

(b) the operation of a part of the term is suspended, the part of that term the operation of which is not suspended shall be regarded as the term of imprisonment imposed on the person in respect of the first offence for the purposes of subsection (1).

(6) Subsection (1) shall not apply to a person if the conviction in respect of the first offence is quashed on appeal or otherwise.

(7) A reference in this section to a sentence imposed on a person in respect of the first offence shall—

(a) if the sentence is varied on appeal, be construed as a reference to the sentence as so varied, or

(b) if, on the application of the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993 , the sentence is quashed by the Court of Criminal Appeal and another sentence is imposed in place of it by that Court on the person, be construed as a reference to that other sentence.

(8) For the purposes of subsections (1)(c) and (10), a period of imprisonment means any time when the person concerned is—

(a) remanded in custody,

(b) serving a sentence in prison, or

(c) temporarily released under section 2 of the Criminal Justice Act 1960 .

(9) References in this section to the subsequent offence shall include references to a second or subsequent offence specified in Schedule 2 of which a person (other than a person under the age of 18 years) is convicted on indictment during the specified period.

(10) The specified period in relation to a person to whom subsection (1) applies shall expire only when the person has not been convicted of an offence specified in Schedule 2

(a) during the period of 7 years from the date of conviction of the subsequent offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or

(b) during any such period of imprisonment.

(11) If, following the application of subsection (1) to a person in respect of a conviction on indictment of an offence specified in Schedule 2

(a) his or her conviction in respect of the first offence is quashed on appeal or otherwise, or

(b) the sentence imposed on the person in respect of the first offence is varied on appeal so that it no longer falls under subsection (1)(b,

the person may apply to the court that imposed the sentence on him or her in respect of the subsequent offence to review it and the court may, if it considers it appropriate to do so, vary that sentence.

(12) (a) If a sentence imposed on a person in respect of a conviction on indictment of an offence specified in Schedule 2 does not fall under subsection (1)(b) but the sentence is—

(i) varied on appeal, or

(ii) on the application of the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993 , quashed by the Court of Criminal Appeal and another sentence is imposed in place of it by that Court on the person,

so that the sentence then falls under subsection (1)(b), subsection (1) shall apply in respect of an offence specified in Schedule 2 (“the subsequent offence”) committed by the person within the specified period.

(b) If, in the circumstances referred to in paragraph (a), a sentence has, at the time of the appeal referred to in subparagraph (i) of that paragraph concerned or, as the case may be, the application referred to in subparagraph (ii) of that paragraph concerned, been imposed on the person concerned in respect of the subsequent offence, the Director of Public Prosecutions may apply to the court that imposed the sentence to review it and the court shall apply subsection (1) to that person in respect of the subsequent offence and, if appropriate, vary the sentence accordingly.

(13) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence of imprisonment imposed in accordance with subsection (1) in respect of the subsequent offence, be exercised before the expiry of the minimum term of imprisonment specified by the court in accordance with that subsection less any reduction of that term arising under subsection (14).

(14) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed in accordance with subsection (1) in respect of the subsequent offence and the minimum term of imprisonment specified by the court in accordance with that subsection shall be reduced by the amount of any remission so earned by the person.

(15) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed in accordance with subsection (1) in respect of the subsequent offence, be exercised during the period for which the commutation or remission of his or her punishment is prohibited by subsection (13) unless for grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by that reason.

(16) The reference in subsection (15) to section 2 of the Criminal Justice Act 1960 shall be construed to include that section as applied by section 4 of the Prisons Act 1970 .

Monitoring orders and protection of persons orders.

26 .— (1) Where a person (other than a person under the age of 18 years) (in this section referred to as “the offender”) is convicted on indictment of an offence specified in Schedule 2 , the court shall consider whether it is appropriate to make an order or orders under this section in relation to the offender for the purpose of monitoring the offender after release from prison or for the purpose of protecting any person.

(2) The court may make an order (in this section referred to as a “ monitoring order”) in relation to the offender requiring the offender, as soon as practicable after the order comes into force, to notify in writing an inspector of the Garda Síochána of the district in which his or her home is located of the address of it and to notify in writing such an inspector of any change of address of his or her home or any proposed absence for a period of more than 7 days from his or her home before any such change of address or any such absence, as the case may be, occurs.

(3) A monitoring order may be made for such period, not exceeding 7 years, as the court considers appropriate.

(4) The court may make an order (in this section referred to as a “ protection of persons order”) in relation to the offender for the purpose of protecting the victim of the offence concerned or any other person named in the order from harassment by the offender while the order is in force.

(5) The court may provide in a protection of persons order that the offender is prohibited from engaging in any behaviour that, in the opinion of the court, would be likely to cause the victim of the offence concerned or any other person named in the order fear, distress or alarm or would be likely to amount to intimidation of any such person.

(6) A protection of persons order may be made for such period, not exceeding 7 years, as the court considers appropriate.

(7) A monitoring order or a protection of persons order in relation to the offender shall come into force on the date on which—

(a) the sentence of imprisonment imposed on him or her in respect of the offence concerned expires or, as the case may be, his or her remission from the sentence begins, or

(b) if the offender is imprisoned in respect of another offence, the date on which that sentence of imprisonment expires or, as the case may be, his or her remission from that sentence begins,

whichever is the later.

(8) Where a monitoring order or a protection of persons order is made (whether or not it is in force), the court that made the order may, if it so thinks proper, on the application of the offender vary or revoke the order if it is satisfied that by reason of such matters or circumstances specified in the application that have arisen or occurred since the making of the order that it should be varied or revoked.

(9) An application under subsection (8) shall be made on notice to an inspector of the Garda Síochána of the district in which the offender ordinarily resided at the time that the order was made or, if appropriate, an inspector of the Garda Síochána of the district in which the home of the offender is located at the time of the application.

(10) A person who fails, without reasonable cause, to comply with a monitoring order or a protection of persons order shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,000 or imprisonment for a term not exceeding 6 months or both.

(11) Nothing in this section shall affect any other order, restriction or obligation, or any condition attaching thereto, to which the offender is subject whether made or imposed under statute or otherwise apart from this section while a monitoring order or a protection of persons order is in force.

(12) In this section “ home ”, in relation to the offender, means his or her sole or main residence or, if he or she has no such residence, his or her most usual place of abode or, if he or she has no such abode, the place which he or she regularly visits.

Amendment of Criminal Justice (Legal Aid) Act 1962.

27 .— The Criminal Justice (Legal Aid) Act 1962 is amended—

(a) by the insertion of the following sections after section 6:

“Legal aid (monitoring order) certificate.

6A.— (1) Where—

(a) a monitoring order has been made in relation to a person, and

(b) a certificate for free legal aid (in this Act referred to as a ‘legal aid (monitoring order) certificate’) is granted in respect of him or her by the court to which an application is made to vary or revoke the order,

the person shall be entitled to free legal aid in the preparation and conduct of an application under section 26 (8) of the Criminal Justice Act 2007 to vary or revoke the order and to have a solicitor and, if the court considers it appropriate, counsel assigned to him or her for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A legal aid (monitoring order) certificate shall be granted in relation to a person in respect of whom a monitoring order has been made if (but only if)—

(a) application is made therefor,

(b) it appears to the court to which the application is made to vary or revoke the order that—

(i) the means of the person are insufficient to enable him or her to obtain legal aid, and

(ii) by reason of the conditions specified in the order or of exceptional circumstances, it is essential in the interests of justice that the person should have legal aid in the preparation and conduct of the application to vary or revoke the order.

(3) In this section ‘monitoring order’ has the meaning it has in section 26 of the Criminal Justice Act 2007.

Legal aid (protection of persons order) certificate.

6B.— (1) Where—

(a) a protection of persons order has been made in relation to a person, and

(b) a certificate for free legal aid (in this Act referred to as a ‘legal aid (protection of persons order) certificate’) is granted in respect of him or her by the court to which an application is made to vary or revoke the order,

the person shall be entitled to free legal aid in the preparation and conduct of an application under section 26 (8) of the Criminal Justice Act 2007 to vary or revoke the order and to have a solicitor and, if the court considers it appropriate, counsel assigned to him or her for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A legal aid (protection of persons order) certificate shall be granted in respect of a person in relation to whom a protection of persons order has been made if (but only if)—

(a) application is made therefor,

(b) it appears to the court to which the application is made to vary or revoke the order that—

(i) the means of the person are insufficient to enable him or her to obtain legal aid, and

(ii) by reason of the conditions specified in the order or of exceptional circumstances, it is essential in the interests of justice that the person should have legal aid in the preparation and conduct of the application to vary or revoke the order.

(3) In this section ‘ protection of persons order ’ has the meaning it has in section 26 of the Criminal Justice Act 2007.”,

(b) in section 7, by the addition of the following subsection:

“(3) Where a legal aid (monitoring order) certificate or a legal aid (protection of persons order) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the person’s application to vary or revoke the monitoring order or the protection of persons order to which the certificate relates shall, subject to the regulations under section 10 of this Act, be paid out of moneys provided by the Oireachtas.”,

and

(c) in section 9(2), by the substitution of “, a legal aid (Supreme Court) certificate, a legal aid (monitoring order) certificate or a legal aid (protection of persons order) certificate” for “or a legal aid (Supreme Court) certificate”.