Abstract
This chapter considers the post-release measures applicable to ex-offenders that are becoming increasingly popular in recent times, taking a new approach to dealing with offenders in the aftermath of imprisonment. Such measures seek to control and monitor the individual’s behaviour in the community by virtue of notification requirements and other monitoring orders. Considering that these measures represent a significant departure from the notion that once a sentence has been served the legal system has no further claim over an offender, the author aims to assess the scope and impact of post-release measures for ex-offenders both in Ireland and in other jurisdictions.
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Notes
- 1.
Foucault (1977), at p. 304.
- 2.
Foucault (1977), at p. 298.
- 3.
Note Garland, D. (2000). Punishment and Modern Society. Oxford: Clarendon Press; Rose, N. (2000) Government and Control. Brit. J. Criminol. 40, 321–339.
- 4.
Barbé-Marbois, F. de, Rapport sur l’état des prisons du Calvados, de l’Eure, la Manche et la Seine Inférieure, 1823, at p. 17. Referenced in Foucault (1977) op. cit., at p. 267.
- 5.
It is interesting to note the Ticket of Leave system that operated in Australia, which to some extent amounted to a form of post-release control over the individual in colonial times. A Ticket of Leave could be granted to an eligible convict, like a parole or probation, and entitled him to live and work within a given police district (in the penal colony) The Ticket of Leave lasted for a year at a time and could be revoked if an offence was committed or the individual travelled outside the prescribed police district.
- 6.
See Hebenton, B. and Thomas, T. (1993). Criminal Records: State, Citizen and the Politics of Protection. Avebury: Aldershot.
- 7.
Earl Shaftesbury, speaking at the debate of the 1869 Habitual Criminals Bill: 194 House of Lords Debates, col. 697, 5 March 1869 (Hansard, Vol. CXCIV).
- 8.
In the UK, the Home Office emphasised that the sex offender register was a civil measure aimed at protecting the public and was not an additional penalty for the offender. Home Office/Scottish Executive (2001). Consultation Paper on the Review of Part 1 of the Sex Offenders Act 1997. London: Home Office, at p. 11.
- 9.
Rose (2000).
- 10.
Hebenton and Thomas (1996), at p. 431.
- 11.
See Lacombe, D. (2008) Consumed with Sex: The Treatment of Sex Offenders in Risk Society. Brit. J. Criminol. 48, 55–74.
- 12.
In the US, electronic monitoring has also been used as a method of improving the management and supervision of released offenders. The requirements vary from State to State but a lifetime obligation may be imposed in some States for certain offenders. See Jacobs, J. (2015) The Eternal Criminal Record. Cambridge MA: Harvard University Press at p. 269; Delson, N. (2006) Using Global Positioning Systems (GPS) for Sex Offender Management. Association for the Treatment of Sexual Abusers Forum 18, 24–30. Moreover, electronic monitoring orders can apply retrospectively, so as Hebenton and Seddon observe “an offender convicted years ago and long since disentangled from the criminal justice system must submit to supervision via an electronic device.” Hebenton, B. and Seddon, T. (2009) From Dangerousness to Precaution: Managing Sexual and Violent Offenders in an Insecure and Uncertain Age. Brit. J. of Criminol. 1–20, at p. 8. In the UK, although this kind of monitoring has not found clear footing in post-release supervision arrangements, a Home Office report recommended optimising the use of technology in the management of offenders and in particular the development and use of satellite tagging and tracking: Home Office (2007) Review of the Protection of Children from Sex Offenders. London: Home Office.
- 13.
The information that may be required and held includes name, address, fingerprints, photographs, social security number, vehicle registration details and DNA profile, and the obligation to register can last anywhere from 10 years to a lifetime obligation. See Jacobs (2015) op. cit.; Terry, K. (2015) Sex offender laws in the United States: smart policy or disproportionate sanctions? International Journal of Comparative and Applied Criminal Justice, 39(2), 113–127; Zgoba, K., Miner, M., Levenson, J., Knight, R., Letourneau, E. and Thornton, D. (2015) The Adam Walsh Act: an examination of sex offender risk classification systems. Sexual Abuse: A Journal of Research and Treatment, 28(8), 722–740.
- 14.
Note that the civil post-release measures in the UK flow from a criminal conviction. See also Thomas, T. (2011) The Registration and Monitoring of Sex Offenders: A Comparative Study, New York: Routledge.
- 15.
- 16.
See also Zgoba, K. (2017) Memorialization laws in the United Kingdom: a response to fear or an increased occurrence? American Journal of Criminal Justice, 42(3), 628–43.
- 17.
A nominated Inspector in each Garda Division has responsibility for liaising with the central Garda Domestic Violence and Sexual Assault Unit (who keep the ‘register’) for the purpose of monitoring the application of and compliance with the Sex Offenders Act 2001.
- 18.
Thomas, T. (2000) Protecting the Public: Some Observations on the Sex Offenders Bill 2000. Irish Criminal Law Journal 10 (2), 12 at p. 12.
- 19.
Department of Justice and Equality (1998). The Law on Sexual Offences-A Discussion Paper. Dublin: Department of Justice and Equality.
- 20.
Department of Justice and Equality, Press Conference Speech by John O’Donoghue to announce the publication of the Sex Offenders Bill 2000, Dublin, January 2000.
- 21.
Section 3 of the Act and the Schedule to the Act provide for such exemptions.
- 22.
The Sex Offender Management and Intelligence Unit is part of the Garda National Protective Services Bureau (GNPSB) which was established in March 2015 as part of a victim-centred approach in carrying out the functions of the organisations responsible for dealing with sexual offences and sex offender management. The Bureau, which replaces the Domestic Violence Sexual Assault Investigation Unit, comprises the following Units: Sexual Crime Management Unit; Paedophile Investigation Unit; Sex Offender Management & Intelligence Unit; SORAM Multi-Agency Office (including personnel from the Probation Service, Child & Family Agency and Local Authority Housing); Human Trafficking Investigation & Coordination Unit; Missing Persons Unit; Domestic Violence Unit; Child Protection Unit; ViClas (Violent Crime Linkage Analysis System); Victim Services Offices. See Annual Report of An Garda Síochána 2015.
- 23.
The sexual offences which trigger the notification requirements are defined in s.3 and the Schedule to the Act and include rape, sexual assault, and incest.
- 24.
This includes offences under the Criminal Law (Human Trafficking) Act 2008. See also various provisions of the Criminal Law (Sexual Offences) Act 2017 (e.g. s.10).
- 25.
Such recommendations come in the form of the Sex Offenders (Amendment) Bill 2018. Those convicted of a sex offence outside the State are also subject to the requirements as long as the offence is one which would be deemed a sex offence under the 2001 Act. Provision is made however for a defence of honestly believing that one was not subject to the requirements because the offence was not one that would have merited the obligations if committed within the State.
- 26.
The power of arrest was introduced under the Criminal Law (Human Trafficking) Act 2008 in relation to offenders who do not comply with their obligations under the Sex Offenders Act 2001.
- 27.
The first application for deregistration came in 2015 from a man registered in 2001 following his conviction for sexual abuse. The judge agreed to remove him from the register as he was at low risk of reoffending and the interests of justice were no longer served by keeping him on the register. Reported in The Irish Times, 11 November 2015: http://www.irishtimes.com/news/crime-and-law/courts/criminal-court/judge-agrees-to-remove-man-from-sex-offenders-register-1.2425874.
- 28.
R (F (A Child)) v Secretary of State for the Home Department [2010] UKSC 17.
- 29.
On indictment, the person is punishable with a fine of €10,000, up to five years imprisonment, or both: Sex Offenders Act 2001, s.12(3), as substituted by s.13(b) of the Criminal Law (Human Trafficking) Act 2008.
- 30.
Section 16(5). The identity of the individual is not usually revealed when such an order is made, meaning the Gardaí have full responsibility in enforcing the order. The order can be imposed on any individual who has been convicted before or after the commencement of the Act either within the State or outside the State (so long as the act would also constitute a sexual offence under the 2001 Act).
- 31.
This justification does not tally with the experience in other jurisdictions which has revealed that once precautionary measures are introduced they tend to trickle down to lower risk offenders.
- 32.
Section 16(7). As the order made is considered civil in nature, the standard of proof required is that applicable to civil proceedings, that is, on the balance of probabilities: s.21(1). Despite this civil standard, criminal penalties are incurred in the event of non-compliance: s.22.
- 33.
These orders can have significant implications for the rights of an ex-offender and have been subject to legal challenge elsewhere: Power, H. (1999) The Crime and Disorder Act 1998 (1)’ ‘Sex offenders, privacy and the police Crim. L. R. 3–16.
- 34.
Reportedly, only three orders have been made to date.
- 35.
Deegan, G. (2015, February 13) Sex offender ordered not to have Tinder, Facebook profiles. Irish Times.
- 36.
Department of Justice and Equality (1998) at para. 10.8.3.
- 37.
Department of Justice and Equality (1998) at para 10.8.1 and para 10.8.6.
- 38.
Section 28. The court may hear any relevant evidence in this regard. In considering the appropriate custodial sentence, the court may not be influenced by the element of supervision (so as to award a lesser custodial sentence), but the aggregate period of the custodial sentence and the period of supervision may not exceed the maximum term of imprisonment available for the particular sexual offence (s.29(2)).
- 39.
Section 30. Any order made be discharged upon application, in the interests of justice.
- 40.
Proceedings for this offence may be brought and prosecuted by a probation officer: Sex Offenders Act 2001, s.33(4) as inserted by s.13 of the Criminal Law (Human Trafficking) Act 2008.
- 41.
See the Probation Service (2017) Annual Report 2017. Dublin, The Probation Service.
- 42.
Section 26. The Act does not provide for such obligations if the employment involves unsupervised access to vulnerable adults (apart from the mentally impaired). In the UK, it is an offence to apply for employment where the person is on the Department of Education’s list of persons excluded from employment in schools, or on the Department of Health’s Consultancy Service Index, or where the individual is subject to a ‘disqualification order.’
- 43.
Current vetting procedures (by the Gardaí) relate to recruitment of staff for children’s residential centres or positions with health boards that will allow individuals’ access to children or vulnerable adults. Private employers or voluntary organisations do not have access to these vetting procedures.
- 44.
Criminal Justice and Court Services Act 2000, s.35(2). In the UK, any work with children merits pre-employment screening under the criminal record check system (Home Office (1986) Protection of Children: Disclosure of Criminal Background of those with Access to Children London: Home Office). The Probation Service will also pass information to the Employment Service on anyone they are supervising who has convictions for sexual offences and should not be offered certain work. The actual nature of the offence is not revealed and the offender is usually informed. Home Office (1999) Disclosure to the Employment Service of Restrictions that should be placed on the Employment of Potentially Dangerous Offenders. London: Home Office, Probation Unit.
- 45.
Mr O’Donoghue, 538 Dáil Debates, 22 June 2001.
- 46.
In the UK, the more elaborate system of disclosure, employers access to the Department of Health’s Consultancy Service Index, and ‘disqualification orders’ are integrated with existing vetting procedures thus allowing employing organisations whose work involves access to children to monitor whether convicted sex offenders are committing the offence of applying for that type of work. No such monitoring is provided for in the Irish provisions.
- 47.
This Act requires mandatory vetting of those who may work with children and vulnerable adults in the public sector, and the information that may be shared with prospective employers includes ‘soft information’ if it is considered necessary. ‘Soft information’ extends beyond a criminal record and is not confined to such.
- 48.
- 49.
This could produce the opposite effect than that intended—instead of reducing risk, it increases it by pushing individuals underground or into the margins of society where they are less easily monitored. It is also worth noting that there is an issue with disclosure of convictions insofar as there is exclusion of those who may pose a real risk but have never been convicted in a court of a sexual crime.
- 50.
See Jacobs (2015).
- 51.
Named after seven-year-old Megan Kanka, who was sexually abused and murdered by a paedophile living on her street in New Jersey. Such community disclosure has been challenged and upheld: Connecticut Department of Public Safety v Doe (2003) 538 US 84.
- 52.
The approach is not universal uncontrolled disclosure. Many states restrict which offender records can be browsed online and can differ in the types of information which are included on the sex offender registry website. See Zgoba, K.M. and Ragbir, D. (2016). Sex Offender Registration and Notification Act (SORNA). Sexual Violence 33–49; Fitch, K. (2006) Megan’s Law: Does it protect children? (2) London: NSPCC.
- 53.
R v Chief Constable of North Wales ex p. A.B. [1998] 3 All ER 310.
- 54.
In the case of R v Devon County Council, ex p. L [1991] 2 FLR social workers, suspecting L of paedophile offences, went to the homes of his female partners who had children to warn them of their suspicions. The disclosure was legitimate, because it was limited to specific individuals where there was a reasonably apprehended specific risk to specific children. Hence it was a ‘legitimate aim’ under Art. 8(2) ECHR .
- 55.
The scheme is named after eight-year-old Sarah Payne who was abducted and murdered by a sex offender in 2000.
- 56.
Department of Justice and Equality (2009) The Management of Sex Offenders: A Discussion Document: Available at www.justice.ie. A proposed disclosure scheme circulated in 2012 (Child Sex Offenders [Information and Monitoring] Bill) was sidelined as raising too many concerns both of a constitutional nature and under the European Convention on Human Rights.
- 57.
A press release from the Department of Justice at the time stated that disclosure of information on registered sex offenders would only be made “in the most exceptional circumstances in order to prevent an immediate risk of crime or to alert members of the public to an apprehended danger and then only on a strict need to know basis.” Department of Justice and Equality, “O’Donoghue publishes Bill to protect the public from sex offenders and to provide for separate legal representation for victims of rape” Press Release, 12 January 2000.
- 58.
The Bill provides for destruction of these samples within 3 months of the person no longer being subject to the provisions.
- 59.
The Act also proposes to permit electronic tagging of released sex offenders, an issue not without controversy itself: Fitzgerald O’Reilly, M (2017, July 3) Seeking to track sex offenders poses human rights questions. Irish Examiner.
- 60.
Note the UK case of X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire [2012] EWHC 2954 in relation to this very issue.
- 61.
See also Fitzgerald O’Reilly, M. (2018). Information Pertaining to Released Sex Offenders: To Disclose or Not to Disclose, that is the Question. The Howard Journal of Crime and Justice 57(2), 204–230.
- 62.
See Harris, A., Levenson, J., Lobanov-Rostovsky, C., and Walfield, S. (2016) Law enforcement perspectives on sex offender registration and notification: effectiveness, challenges, and policy priorities. Criminal Justice Policy Review, https://doi.org/10.1177/0887403416651671. Available at: http://journals.sagepub.com/doi/abs/10.1177/0887403416651671 (accessed 25 August 2017); Thomas, T. (2016) Policing Sexual Offences and Sex Offenders. Basingstoke: Palgrave Macmillan.
- 63.
Department of Justice, The Management of Sex Offenders (2009).
- 64.
- 65.
Connor, D. and Tewksbury, R. (2017) Public and professional views of sex offender registration and notification Criminology, Criminal Justice, Law & Society, 18(1), 1–27.
- 66.
Jennings, W. and Zgoba, K. (2015) An application of an innovative cost-benefit analysis tool for determining the implementation costs and public safety benefits of SORNA with educational implications for criminology and criminal justice. Journal of Criminal Justice Education, 26(2), 147–162; Tewksbury, R., Jennings, W., and Zgoba, K. (2012) A longitudinal examination of sex offender recidivism prior to and following the implementation of SORN. Behavioral Sciences & the Law, 30, 308–328.
- 67.
- 68.
Those who have a relationship with their assailant are less likely to be sufficiently protected and often entirely overlooked by the justice system (Jenkins 1998). Modern initiatives in the UK and Ireland seek to tackle the ‘demonisation’ of the sex offender, and projects like Circles of Support and Stop it Now, that recognised that most sexual abuse is by people known to their victim, aim to combine surveillance with reintegration strategies.
- 69.
As amended by the Criminal Justice (Victims of Crime) Act 2017.
- 70.
Anti-social behaviour order under the Police Reform Act 2002 and serious crime prevention order under the Serious Crime Act 2007. Similar provisions have also been introduced elsewhere—see Methven, E. and Carter, D. (2016) Serious Crime Prevention Orders. Current Issues in Criminal Justice 28 (2), 227–238.
- 71.
The Criminal Justice Bill 2007 s. 25(2) (7).
- 72.
See, for example, ICCL (2007) What’s Wrong with the Criminal Justice Bill? Dublin: Irish Council for Civil Liberties; Rogers, J. (2007, April 4) Elements of the Criminal Justice Bill do not stand up to scrutiny. The Irish Times; Editorial (2007, April 26) Criminal Justice Bill increases erosion of civil rights. The Irish Times.
- 73.
- 74.
ICCL (2007) op. cit., at p. 5.
- 75.
634 Dáil Debates 619, 23 March 2007.
- 76.
See Mr Brendan Howlin, 643 Dáil Debates 407, 22 March 2007. See also Mr Jim O’Keeffe, who described the provision as a ‘good idea.’ 643 Dáil Debates 407, 22 March 2007.
- 77.
See, for example, Mr Damien English, 634 Dáil Debates 691, 23 March 2007.
- 78.
See speech of Ms Roisin Shorthall, ibid., at 699.
- 79.
Mr Howlin and Mr O’Keeffe, 634 Dáil Debates 617, 22 March 2007.
- 80.
Criticism at the proposed provision was made both in the Dáil and outside. See, for example, Mr Howlin, 634 Dáil Debates 617, 22 March 2007; Rogers (2007).
- 81.
634 Dáil Debates, col 636, col 137, 24 April 2009.
- 82.
Ibid., at p. 138.
- 83.
Ibid., at p. 139.
- 84.
See, for example, Mr Damien English, 634 Dáil Debates 691, 23 March 2007.
- 85.
The other offences include murder, threats to kill, or cause serious harm (Non-Fatal Offences Against the Person Act 1997– s.5), explosives offences under the Explosive Substances Act 1883, firearm offences under the Firearms Acts, drug trafficking offences (Criminal Justice Act 1994-s.3), and organised crime offences under the Criminal Justice Act 2006.
- 86.
Section 26(3). Such discretion would assumingly be limited by constitutional principles so that the orders are not disproportionate or vague.
- 87.
This shifting of the burden of proof (the obligation is on him to prove the order is no longer necessary) to the offender is notable in the provisions that pertain to sex offenders and drug trafficking offenders also and is further evidence of the onus placed upon the ex-offender. Note that it is not clear what standard of proof is required in making the order. For discussion see Rogan, M. (2008). Extending the Reach of the State into the Post-Sentence Period: Section 26 of the Criminal Justice Act 2007 and “Post-Release” Orders Dublin University Law Journal 15 (1), 298–323.
- 88.
Section 26(4).
- 89.
There is no mention (as of yet) of these orders in Gardaí Reports.
- 90.
Rogan (2008) op. cit., at p. 220.
- 91.
‘Re-Balancing Rights? Contemporary Issues in Human Rights and Criminal Justice.’ Public Consultation held in the President’s Hall of the Law Society of Ireland on 17 February 2007.
- 92.
Professor Robert Gordon, speaking at the Public Consultation: ‘Re-Balancing Rights? Contemporary Issues in Human Rights and Criminal Justice’ (2007) op. cit.
- 93.
In relation to organised crime offences, the Criminal Justice Act 2007, section 50, also permits a maximum period of seven days detention in relation to specified offences under the section. This provision does not affect the operation of section 2 of the Criminal Justice (Drug Trafficking) Act 1996.
- 94.
The initiation of ‘hard’ policies for drug offences was the Misuse of Drugs Act 1984 which provided for higher fines and harsher sentences for those convicted of drug offences.
- 95.
Address by the Tánaiste at the Criminal Law Conference 2006, Royal College of Surgeons. Changes made under the Act included in the areas of investigating offences, sentencing, firearms, and organised crime.
- 96.
‘Criminal Justice Bill Published’ available at www.justice.ie/en/JELR/Pages/Criminal_justice_bill_published.
- 97.
Address by the Tánaiste at the Criminal Law Conference 2006, Royal College of Surgeons. Available at http://www.justice.ie/en/JELR/Pages/Speech_Criminal_Law_Conference_2006.
- 98.
The Minister and Tánaiste announcing the publication of the Bill, (2006) ibid.
- 99.
The Minister and Tánaiste announcing the publication of the Bill, (2006) op. cit.
- 100.
Irish Human Rights Commission (2006). Observations on Additional Proposals for Amendments to the Criminal Justice Bill 2004. Dublin: IHRC.
- 101.
As amended by the Criminal Justice (Victims of Crime) Act 2017.
- 102.
Criminal Justice Act sections 88 and 89.
- 103.
Section 89(2) and section (3)(a)(b)(c).
- 104.
Criminal Justice Act 2006, section 95.
- 105.
Section 91.
- 106.
This date is defined in section 87 as the date of conviction (and not the date of sentence ) for the drug trafficking offence. Murphy notes that this is an anomaly, given that in theory an individual is subject to the requirements from the moment of conviction and if a sentence of less than 12 months is subsequently imposed the offender will cease to be obligated by the provisions. Murphy, G. (2007) An Analysis of Sentencing Provisions in the Criminal Justice Act 2006. Judicial Studies Institute Journal, 60, at pp. 92–93.
- 107.
Section 92(6).
- 108.
This period is any period of seven days or two or more periods which, taken together, add up to seven days (s.92(11)).
- 109.
Section 92(8).
- 110.
Section 90. If part of the sentence is suspended, the part that is not suspended is regarded as the term of imprisonment for the purposes of the section (s.90(5)), and if two or more sentences are imposed consecutively or are partly concurrent, the aggregate sentence is the period of imprisonment (s.90(6)).
- 111.
These periods are halved if the offender is under 18 years old (section 90 (4)).
- 112.
See generally Murphy (2007) op. cit.
- 113.
Dáil Statement by the Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern, on the killing of Shane Geoghegan,13 November 2008, available at http://www.justice.ie. Many opposed aspects of the Bill believing that although the measures were tough they were not necessary and would be of little effect in fighting organised crime. See, for example, Senator Ivana Bacik, 196 Seanad Debates, Second Stage of the Bill, no. 15, 14 July 2009.
- 114.
Dáil Statement by then Minister for Justice and Equality, Mr. Dermot Ahern, on the killing of Shane Geoghegan,13 November 2008. Available at http://www.justice.ie.
- 115.
Prior to the introduction of these provisions, there was little discussion as to what the actual intent of the measures were to be (deterrent, protective, or otherwise), other than enabling the Gardaí to monitor such individuals. A public protection element may be more readily inferred from the post-release orders under the 2009 Act.
- 116.
Rose (2000) op. cit.
- 117.
Ruardhri McAuliffe of UISCE, speaking at the conference. Available at http://www.iprt.ie/print/127.
- 118.
There was a delay in setting up the system initially, likely due to a deficit in Garda resources. So far there is minimal information as to how the Gardaí are coping with the additional duties imposed upon them by virtue of these provisions.
- 119.
Enright v Ireland [2003] 2 I.R. 321.
- 120.
Rogan argues that one cannot assume that the decision in Enright could not be assumed to apply automatically to a challenge of section 26 of the Criminal Justice Act 2007 due to the focus upon the particular risk posed by sex offenders in the case. See Rogan (2008) op. cit., at p. 226.
- 121.
The court applied the tests developed in Tuohy v Courtney [1994] 3 I.R. 1 and Heaney v Ireland [1994] 3 I.R. 593 and found that the test of proportionality was passed.
- 122.
People (DPP) v Cawley [2003] 4 I.R. 321, at p. 335.
- 123.
Ashworth, A., Gardner, J., Morgan, R., Smith, A.T.H., Von Hirsch, A., and Wasik, M. (1998) Neighbouring on the Oppressive: The Government’s Anti-Social Behaviour Order Proposals Criminal Justice 16, 7–14.
- 124.
DPP v NY [2002] 4 I.R. 309.
- 125.
CC v Ireland [2006] 4 I.R. 1.
- 126.
The case concerned the constitutional compatibility of offences of strict liability, the issue of notification requirements being considered in this context.
- 127.
GD v Ireland, unreported, Court of Criminal Appeal, 13 July 2004.
- 128.
P.H. v Ireland, unreported, High Court, 16 February 2006, at para. 7.7.
- 129.
J.F. v Ireland & anor [2015] IEHC 468.
- 130.
Ibid., para 53, per Binchy.
- 131.
R v Durham Police [2005] U.K.H.L 21. The House of Lords controversially considered that imposing the requirements pursuant to a caution was not the determination of a criminal charge and thus not incompatible with Article 6 of the ECHR . The American Courts have refused to recognise the punitive nature of registration and community notification (see, e.g. Smith v Doe (2003) 538 US 84).
- 132.
Ibbotson v UK (1998) 27 EHRR 332.
- 133.
Adamson v UK (1999) 28 E.H.R.R. 209.
- 134.
634 Dáil Debates 619, 23 March 2007.
- 135.
- 136.
See Hudson, B. (2003). Understanding Justice, 2nd ed. Buckingham: Open University Press.
- 137.
N.Y. [2002] 4 I.R. 308.
- 138.
P.H. v Ireland, unreported, High Court, 16 February 2006 (Clarke J).
- 139.
See Zedner (2004) op. cit.
- 140.
Hudson (2003) op. cit.
- 141.
Thomas, T. ‘When Public Protection Becomes Punishment? The U.K. Use of Civil Measures to Contain the Sex Offender’ (2004) 10 European Journal on Criminal Policy and Research 337, at p. 337. See also O’Malley, T. (2009) Sentencing Recidivist Sex Offenders: A Challenge for Proportionality. In Bacik, I. and Heffernan, L. (eds.) Criminal Law and Procedure: Current Issues and Emerging Trends. Dublin: First Law.
- 142.
The fact that breaches will take place unless the individual can prove ‘reasonable excuse’ invokes as Rogan remarks, “a danger of establishing a ‘shadow legal system’ where individuals are accused of criminal activity on pain of punishment but without the traditional protections of the criminal law, short circuiting the protections of Article 38.1 in the process.” Rogan (2008) op. cit., at p. 233.
- 143.
An example of how the Courts are dealing with non-disclosure is in the context of notification orders. It was reported in June 2009 that a District Court imposed an 11 month suspended sentence on a convicted sex offender who had failed to comply with the provisions under Part 2 of the 2001 Act. The 68-year-old sex offender had not notified the Gardaí of his departure, his whereabouts, or his return, after being abroad for more than seven days. The court felt this sentence reflected the seriousness of failing to notify. Editorial (2009, June 26) Convicted sex offender failed to comply with terms of register. Mullingar Advertiser.
- 144.
Irish Prison Service (2009) Sex Offender Management Policy: Reducing Re-offending, Enhancing Public Safety. Dublin, Irish Prison Service.
- 145.
A key element of this is the recognition that sex offenders comprise a diverse group with a range of needs and levels of risk. Thus, any interventions pursued aim to be informed by individual assessments and based on integrated sentence plans (Irish Prison Service 2009).
- 146.
Irish Prison Service, The Integrated Treatment and Management of those Convicted of Sexual Violence, available at http://www.irishprisons.ie/wp-content/uploads/documents_pdf/sex_offender_management_may2016.pdf.
- 147.
Sexual Offenders (Amendment) Bill 2018.
- 148.
Potential victims right to life, freedom from torture, respect for their family life and privacy and to liberty and security (Article 5 ECHR ) are important concerns and give powerful justifications for upholding policies that interfere with offenders’ rights. However, there are offenders’ rights to contend with also. The right to life (Article 2 ECHR ), freedom from torture and degrading treatment (Article 3), and respect for privacy (Article 8) are serious rights that merit consideration in this regard. Charleton J comments on the importance of having a balance between such rights in the case of DPP [At Suit of Detective Garda Barry Walsh] v Cash [2007] I.E.H.C. 108, at para. 45.
- 149.
Garland believes that “punitive segregation—lengthy sentence terms in no frills prisons, and a marked, monitored existence for those who are eventually released—is increasingly the penal strategy of choice.” Garland (2001) op. cit., at p. 142.
- 150.
The increasingly punitive and restrictive line of the legislature means that responsibility will lie with the courts to achieve and maintain a balance in this sensitive area.
- 151.
McWilliams, W. and Pease, K. (1990) Probation Practice and an End to Punishment. The Howard Journal 29 (1), 14–24.
- 152.
Foucault (1977) op. cit., at p. 303.
- 153.
Zimring et al. believe that most penal laws are designed to ‘bark louder than they bite’ and to provide the necessary symbolic ‘get tough’ message across without having major resource implications. See generally Zimring, Z., Hawkins, G., and Kamin, S. (2001). Punishment and Democracy: Three Strikes and You’re Out in California. Oxford: Oxford University Press.
- 154.
Bibliography
An Garda Síochána. (2015). Annual Report. Dublin: An Garda Síochána.
Ashworth, A., Gardner, J., Morgan, R., Smith, A. T. H., Von Hirsch, A., & Wasik, M. (1998). Neighbouring on the Oppressive: The Government’s Anti-Social Behaviour Order Proposals. Criminal Justice, 16, 7–14.
Becker, H. (1963). Outsiders: Studies in the Sociology of Deviance. New York: The Free Press.
Caputo, A., & Brodsky, S. (2003). Citizen Coping with Community Notification of Released Sex Offenders. Behavioral Sciences & the Law, 22, 239–252.
Connor, D., & Tewksbury, R. (2017). Public and Professional Views of Sex Offender Registration and Notification. Criminology, Criminal Justice, Law & Society, 18(1), 1–27.
Deegan, G. (2015, February 13). Sex Offender Ordered Not to Have Tinder, Facebook Profiles. Irish Times.
Delson, N. (2006). Using Global Positioning Systems (GPS) for Sex Offender Management. Association for the Treatment of Sexual Abusers Forum, 18, 24–30.
Department of Justice and Equality. (1998). The Law on Sexual Offences—A Discussion Paper. Dublin: Department of Justice and Equality.
Department of Justice and Equality. (2009). The Management of Sex Offenders: A Discussion Document. Dublin: Department of Justice and Equality.
Editorial. (2007, April 26). Criminal Justice Bill Increases Erosion of Civil Rights. The Irish Times.
Editorial. (2009, June 26). Convicted Sex Offender Failed to Comply with Terms of Register. Mullingar Advertiser.
Farrell, R. A., & Swigert, V. L. (1978). Prior Offence Record as a Self-Fulfilling Prophecy. Law & Society Review, 12(3), 437–453.
Fitch, K. (2006). Megan’s Law: Does It Protect Children? (2). London: NSPCC.
Fitzgerald O’Reilly, M. (2013). Post Release Supervision of Sex Offenders. Irish Criminal Law Journal, 23(4), 108.
Fitzgerald O’Reilly, M. (2017, July 3). Seeking to Track Sex Offenders Poses Human Rights Questions. Irish Examiner.
Fitzgerald O’Reilly, M. (2018). Information Pertaining to Released Sex Offenders: To Disclose or Not to Disclose, That Is the Question. The Howard Journal of Crime and Justice, 57(2), 204–230.
Foucault, M. (1977). Discipline and Punish: The Birth of the Prison (A. Sheridan, Trans.). London: Penguin Books.
Garland, D. (1990). Punishment and Modern Society: A Study in Social Theory. Oxford: Clarendon Press.
Garland, D. (2001). The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press.
Harris, A., Levenson, J., Lobanov-Rostovsky, C., & Walfield, S. (2016). Law Enforcement Perspectives on Sex Offender Registration and Notification: Effectiveness, Challenges, and Policy Priorities. Criminal Justice Policy Review. https://doi.org/10.1177/0887403416651671.
Hebenton, B., & Seddon, T. (2009). From Dangerousness to Precaution: Managing Sexual and Violent Offenders in an Insecure and Uncertain Age. The British Journal of Criminology, 49(3), 343–362.
Hebenton, B., & Thomas, T. (1993). Criminal Records: State, Citizen and the Politics of Protection. Avebury: Aldershot.
Hebenton, B., & Thomas, T. (1996). Sexual Offenders in the Community: Reflections on Problems of Law, Community and Risk Management in the U.S.A., England and Wales. International Journal of the Sociology of Law, 24, 427–443.
Home Office. (1986). Protection of Children: Disclosure of Criminal Background of Those with Access to Children. London: Home Office.
Home Office. (1999). Disclosure to the Employment Service of Restrictions That Should be Placed on the Employment of Potentially Dangerous Offenders. London: Home Office.
Home Office. (2001). Consultation Paper on the Review of Part 1 of the Sex Offenders Act 1997. London: Home Office.
Home Office. (2007). Review of the Protection of Children from Sex Offenders. London: Home Office.
Hudson, B. (2003). Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory (2nd ed.). Buckingham: Open University Press.
Irish Council for Civil Liberties. (2007). What’s Wrong with the Criminal Justice Bill? Dublin: Irish Council for Civil Liberties.
Irish Human Rights Commission. (2006). Observations on Additional Proposals for Amendments to the Criminal Justice Bill 2004. Dublin: IHRC.
Irish Prison Service. (2009). Sex Offender Management Policy: Reducing Re-offending, Enhancing Public Safety. Dublin: Irish Prison Service.
Irish Prison Service. (2013). Recidivism Study. Dublin: Irish Prison Service.
Jacobs, J. B. (2015). The Eternal Criminal Record. Cambridge, MA: Harvard University Press.
Jennings, W., & Zgoba, K. (2015). An Application of an Innovative Cost-Benefit Analysis Tool for Determining the Implementation Costs and Public Safety Benefits of SORNA with Educational Implications for Criminology and Criminal Justice. Journal of Criminal Justice Education, 26(2), 147–162.
Kemshall, H., & Wood, J. (2010). Child Sex Offender Review (CSOR): Public Disclosure Pilots, A Process Evaluation. London: Home Office.
Kemshall, H., Dominey, J., & Hilder, S. (2012). Public Disclosure: Sex Offenders’ Perceptions of the Pilot Scheme in England. Compliance, Legitimacy and Living a “Good Life”. Journal of Sexual Aggression, 18(3), 311–324.
Lacombe, D. (2008). Consumed with Sex: The Treatment of Sex Offenders in Risk Society. The British Journal of Criminology, 48, 55–74.
Larrauri, E. (2014a). Criminal Record Disclosure and the Right to Privacy. Criminal Law Review, 10, 723–737.
Larrauri, E. (2014b). Legal Protections Against Criminal Background Checks. Punishment & Society, 16(1), 50–73.
Law Society of Ireland. (2007, February 27). Law Society’s Deep Concern at Government’s Intention to Rush Through Far-Reaching Changes in Criminal Law. Press Release.
Levenson, J., Brannon, Y., Fortney, T., & Bake, J. (2007). Public Perceptions About Sex Offenders and Community Protection Policies. Analyses of Social Issues and Public Policy, 7(1), 1–25.
McWilliams, W., & Pease, K. (1990). Probation Practice and an End to Punishment. The Howard Journal, 29(1), 14–24.
Methven, E., & Carter, D. (2016). Serious Crime Prevention Orders. Current Issues in Criminal Justice, 28(2), 227–238.
Murphy, G. (2007). An Analysis of Sentencing Provisions in the Criminal Justice Act 2006. Judicial Studies Institute Journal, 1, 60–100.
O’Donnell, I., Baumer, E. P., & Hughes, N. (2008). Recidivism in the Republic of Ireland. Criminology & Criminal Justice, 8(2), 123–146.
O’Malley, T. (2009). The Criminal Process. Dublin: Thomson Reuters, Round Hall.
O’Sullivan, J., Hoggett, J., Kemshall, H., & McCartan, K. (2016). Understandings, Implications and Alternative Approaches to the Use of the Sex Offenders Register in the UK. Irish Probation Journal, 13, 84–101.
Power, H. (1999). The Crime and Disorder Act 1998 (1) ‘Sex Offenders, Privacy and the Police’. Criminal Law Review, 3–16.
Rogan, M. (2008). Extending the Reach of the State into the Post-Sentence Period: Section 26 of the Criminal Justice Act 2007 and “Post-Release” Orders. Dublin University Law Journal, 15(1), 298–323.
Rogers, J. (2007, April 4). Elements of the Criminal Justice Bill Do Not Stand Up to Scrutiny. The Irish Times.
Rose, N. (2000). Government and Control. British Journal of Criminology, 40, 321–339.
Terry, K. (2015). Sex Offender Laws in the United States: Smart Policy or Disproportionate Sanctions? International Journal of Comparative and Applied Criminal Justice, 39(2), 113–127.
Tewksbury, R., Jennings, W., & Zgoba, K. (2012). A Longitudinal Examination of Sex Offender Recidivism Prior to and Following the Implementation of SORN. Behavioral Sciences & the Law, 30, 308–328.
Thomas, T. (2000). Protecting the Public: Some Observations on the Sex Offenders Bill 2000. Irish Criminal Law Journal, 10(2), 12.
Thomas, T. (2004). When Public Protection Becomes Punishment? The U.K. Use of Civil Measures to Contain the Sex Offender. European Journal on Criminal Policy and Research, 10, 337–351.
Thomas, T. (2005). Sex Crime: Sex Offending and Society (2nd ed.). Devon: Willan Publishing.
Thomas, T. (2011). The Registration and Monitoring of Sex Offenders: A Comparative Study. New York: Routledge.
Thomas, T. (2016). Policing Sexual Offences and Sex Offenders. London: Palgrave Macmillan.
Zedner, L. (2004). Criminal Justice. Oxford: Oxford University Press.
Zgoba, K. (2017). Memorialization Laws in the United Kingdom: A Response to Fear or an Increased Occurrence? American Journal of Criminal Justice, 42(3), 628–643.
Zgoba, K., & Ragbir, D. (2016). Sex Offender Registration and Notification Act (SORNA). Sexual Violence, 33–49.
Zimring, F. E., Hawkins, G., & Kamin, S. (2001). Punishment and Democracy: Three Strikes and You’re Out in California. Oxford: Oxford University Press.
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Fitzgerald O’Reilly, M. (2018). Post-Release Monitoring of Ex-offenders in the Community. In: Uses and Consequences of a Criminal Conviction. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-59662-8_7
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