Indefinite inclusion on the Sexual Offences Register – R and Thompson v Secretary of State for the Home Department
In R and Thompson v Secretary of State for the Home Department the UK Supreme Court upheld the decisions of the Divisional Court and the Court of Appeal that inclusion on the Sexual Offences Register for the duration of an offender’s life was in breach of the ECHR. Statutory notification requirements for sex offenders were first introduced in the UK by section 1(3) of the Sex Offenders Act 1997, later amended by the Criminal Justice and Courts Services Act 2000. These provisions were repealed, and now, section 82 of the Sexual Offences Act 2003 imposes a duty on anyone sentenced to 30 months’ imprisonment or more for a sexual offence to notify the police of where they live and of any travel abroad. There is no right to a review of these notification requirements, and they endure for “an indefinite period”, as the Act terms it, which is essentially the remainder of a person’s life.
The respondents, R and Thompson, sought judicial review, contending that such absence of a right of review breached their right to privacy protected by Article 8 of the ECHR. In the Supreme Court, Lord Phillips emphasised that the core of the case was whether the interference with offenders’ Article 8 rights is proportionate, given the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. He focused on three questions: “(i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review?” (para. 41).
He acknowledged the necessity for the authorities to be aware of the location of persons convicted of sexual offences that are being actively managed or supervised, noting that this level of supervision is determined, in part, by the risk of reoffending they pose (para. 45). When a person is subject to lifetime notification requirements but no longer poses any significant risk of committing further sexual offences and this is demonstrably the case, Lord Philips felt it would be pointless to maintain notification requirements given the incursions on Article 8, and indeed from a pragmatic sense felt it overburdened the responsible authorities (para. 51). This is an interesting and logical mix of principled and practical argument. Lord Phillips, at para. 57, concluded that “there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified.” He emphasised the viability of review in other jurisdictions, including Ireland, and noted that “This does not suggest that the review exercise is not practicable.”
In Ireland, s 8(3)(a) of the Sex Offenders Act 2001 requires notification for “an indefinite duration” if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for more than two years, but s 11(1) allows for a court application to discharge this obligation on the ground that the interests of the common good are no longer served by his or her continuing to be subject to them. However, such an application cannot be made before the expiration of ten years from the date of the person’s release from prison.
Despite some predictable media coverage (see the Sun, “Rapists win new legal rights”), the decision is narrow in scope, and concerns the lack of review only rather than compromising the legitimacy or legality of the Register itself. Indeed, Lord Rodger emphasised that he saw “no basis for saying that, in themselves, the notification requirements, including those relating to travel, are a disproportionate interference with the offenders’ article 8 rights to respect for their family life, having regard to the important and legitimate aim of preventing sexual offending” (para. 64).
The Governor of the Dóchas centre, the main female prison in the state has resigned because of the “serious undermining” of her position and an “overall lack of respect by senior personnel in the Irish Prison Service”.
The first hand evidence given by Ms McMahon of the degree of overcrowding and its effects on rehabilitative regimes and simple day-to-day living gives an insight into the reality of what we have known for some time. Overcrowding is becoming chronic in the Irish prison system and that this is leading to increased tensions, diminished services and fewer opportunities to facilitate those imprisoned to change their lives. As the former Governor notes, what had been a flagship, progressive regime will be replaced by one in which tensions, self-harm and bullying would reappear, and in which health, educational and training facilities would become overloaded.
While this is extremely worrying, particularly as there appears to be no concerted strategy to deal with the issue of growing prison numbers in the short, medium and indeed long term, there is a concern arising out of Ms McMahon’s description of life in Dóchas which is a new one and perhaps even more significant and disquieting.
Ms McMahon states that the relationship between those in charge of the day to day regime within the Dóchas Centre and officials from the Irish Prison Service had deteriorated because of unannounced visits and lack of consultation in operational decisions, such as that to place bunk beds in rooms designed for one prisoner. Read more…
The Irish cabinet reshuffle (see here, here, here and here) has resulted in the Department of Justice, Equality and Law Reform , being divested of issues relating to equality, disability, integration and human rights. These important areas will be subsumed into the new Department of Community, Equality and Gaeltacht Affairs. The comments below are some initial reactions to this news.
Justice, Equality and Human Rights-Why?
I do not believe in making structural changes for their own sake. Too often, changes in structures can be pursued to disguise a lack of clear priorities or the determination to implement them. This Government has a clear agenda which I am determined will be driven forward with energy and commitment. There is no time to be wasted on extensive restructuring at the expense of action to implement our policies.
An Taoiseach Brian Cowen T.D. 23 March 2010
From 1992 until 1997, there was Minister for Equality and Law Reform, however post the 1997 general election, this was subsumed into the Department of Justice (to become the Dept. of Justice, Equality and Law Reform (DJELR).This was a time of enormous economic growth within the Republic of Ireland and a number of months before the signing of the Belfast/Good Friday Agreement. The thrust of today’s speech by An Taoiseach’s recognised the need for a re-invigorated economy based on job creation and innovation. For reasons highlighted by the statement of An Taoiseach above, structural changes were made to a number of departments.
As this piece in the Irish Times argues, it is to be hoped that the judiciary implement the finalised Act in full. District Court sentencing is something about which we know rather little, but the proliferation of short sentence prisoners in Irish jails tends to suggest that minor offences do attract custodial sentences on a not-infrequent basis. Those interested in penal reform in Ireland will hope that this signal from the Oireachtas will lead to a reassessment amongst District Court judges of their sentencing practice and prompt further legislative activity to promote genuine alternatives to custody.
One entirely unnecessary stick to beat the prison system with is about to be removed. There remains more to be done. Ireland gives out some of the highest numbers of short sentences in Europe. Dealing with this category of prisoners within the community makes obvious financial and social sense. Ending imprisonment for fine default is a small step in the right direction.
The Immigrant Council of Ireland recently briefed delegates from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) during their recent ‘periodic visit’ toDublin. You can find the Irish reports and responses from 2002 and 2006 here. The ICI says in its latest newsletter that :
At the meeting, the ICI highlighted existing legislative provisions for immigration-related detention in a wide range of circumstances, as well as the proposed provisions in the Immigration, Residence and Protection Bill 2008. The ICI also highlighted the ongoing difficulties in monitoring the welfare and conditions of migrants in detention due to the lack of official data recorded by the Irish Prison Service or other agencies…In addition, the ICI raised concerns about victims of trafficking being kept in detention and charged with immigration related offences, concerns which were also expressly highlighted by the US Trafficking In Persons Report (2009)
We are pleased to welcome this guest post from Diarmuid Griffin, Lecturer in Law at NUI Galway. You can read more about Diarmuid on our Guest Contributors Page.
The National Commission on Restorative Justice published its final report in December 2009. The Commission, announced in March 2007, was set up to examine the wider application of restorative justice within the criminal justice system. The Commission was established following the report of the Joint Committee on Justice, Equality, Defence and Women’s Rights which recommended the development of a restorative justice programme for adult offenders in the Irish criminal justice system.
Restorative justice programmes can already be seen in operation in Ireland for juvenile offenders through the Garda Diversion Programme or a court-referred Probation Service Conference and ad hoc programmes dealing with adult offenders in Nenagh and Tallaght. While there are various different models of restorative justice, the practice generally involves the bringing together of the victim, offender and, where possible, members of the community to negotiate the outcome for the offending behaviour. For example, rather than sentencing an offender to a traditional term in prison a judge may refer an offender into a restorative programme where such a negotiation may occur.
In its final report, the Commission recommends the national implementation of restorative justice for adult offenders. The Commission believes that such a programme “will make a positive contribution to the lives of all citizens, and particularly to those more closely connected to the offending behaviour.” Having conducted an extensive examination of the use of restorative justice in Ireland and in other jurisdictions, the report attempts to provide a workable framework for the development of restorative justice that is mindful of both economic and criminal justice realities.
From the Centre for Criminal Justice and Human Rights at the Faculty of Law, UCC comes news of the 4th Annual Criminal Justice and Human Rights Lecture:
The 4th Annual Criminal Justice and Human Rights Lecture is to be delivered by The Honourable Mr. Justice William McKechnie, Judge of the High Court on “Respectable Criminality”and will take place on Thursday March 4th 2010 in the Aula Maxima, UCC at 6.30pm (Registration for this event will take place from 17:45)
The lecture will be chaired by Dr.David Riordan, Judge of the District Court With a wine reception to follow.
A 1.5 Hours CPD Certificate of Attendance will be issued for this event.
There is No admission charge for this event.
Click here for a map of the campus.
RSVP via email: firstname.lastname@example.org by 10th February, 2010.
Department of Law,
University College Cork
Last Thursday and Friday, December 3 and 4, saw an international conference of a very high calibre take place in Limerick (see press coverage in the Irish Times and the Irish Examiner). This conference (previously advertised on this blog here), which focused on Police Governance and Accountability, was organised through the Centre for Criminal Justice in the University of Limerick by a contributor to this blog, Dr. Vicky Conway (formerly of UL, now at Queen’s University Belfast) and Professor Dermot Walsh (UL).
The conference was very well-attended and drew an impressive array of scholars and practitioners researching and working in the area of policing both nationally and internationally. The main plenary presentations were given by Professor Andrew Goldsmith from the University of Wollongong in New South Wales, Australia, Professor James Sheptycki from York University in Toronto, Canada and an intriguing turn-and-turn-about final plenary presentation from Dr. Vicky Conway and Professor Dermot Walsh.
Professor Goldsmith discussed the manner in which modern technology, such as mobile phones, digital cameras and the internet (specifically sites like YouTube), are allowing for a new sort of transparency in policing whereby previously invisible police actions can be observed, recorded and shown to the public at large. He gave the example of the death of a Polish immigrant, Robert Dziekanski, following the police use of a taser gun on him in Vancouver airport which was caught on video. Professor Goldsmith used the phrase “sous-veillance” for this type of recording of police actions which comes from beneath and can be contrasted with the more traditional sur-veillance (which comes from the top down). All of this, he suggested, will have an impact on the ability of the police to manage public perceptions of policing, on the demands that are made of oversight agencies, and on the practice of policing in general.
Professor Sheptycki discussed the challenges which exist for transnational policing in the modern world. Employing interesting analogies from the world of art and art history, Professor Sheptycki explored the concept of “constabularly ethics” and sought to ask the question, in the context of European co-operation in policing, “what is good policing?” Professor Sheptycki was particularly interested in “The Raft of the Medusa” by Gericault, which is housed at the Louvre, and depicts a scene of tragedy on a raft set adrift after the wreck of a French naval vessel. Of 147 people aboard the raft, only 15 survived. The painting shows a point of crisis but with the hope of a rescue ship in the distance. Professor Sheptycki suggests that the concept of the “constabulary ethic” may bring hope to the future of transnational policing.
While each of the plenary sessions were thought-provoking, from an Irish perspective the swift overview of the Garda Síochána, from their initial establishment through to current challenges and future possibilities delivered in this third session was particularly interesting. Dr. Conway and Professor Walsh raised many questions about the level of political control of the gardaí provided for under the Garda Síochána Act 2005, the potential strengths and weaknesses of the Garda Síochána Ombudsman Commission and the general secrecy of the Gardaí as an institution. Dr. Conway gave a most insightful description of the work of the Morris Tribunal, the allegations which led to its establishment and the findings of Mr. Justice Morris (all of which are detailed in her forthcoming book “The Blue Wall of Silence: The Morris Tribunal and Police Accountability in Ireland“). Professor Walsh mentioned the lack of statistics on many policing issues in this jurisdiction. He suggested that material such as The Garda Code ought to be made publicly available and was of the opinion that the availability of such material and public knowledge about the training and ethics of the gardaí might in fact increase public confidence in the force.
More than 40 papers were delivered over the course of the two-day event on topics including: juvenile justice and alternative policing; police complaints and accountability; policing of vulnerable groups; new technologies in policing; police culture and decision-making; local policing; policing and constitutional values; policing and the law of evidence; and many other related matters. Rights issues which arose included: incursions on the right to silence; the protection of the suspect right to pre-trial legal advice; victims’ rights; privacy rights and the use of DNA; the consequences of police abuse of power and the exclsuion of evidence; children’s rights; privacy rights and the use of CCTV; and many more.
This was a most successful and informative conference which allowed for transnational discussions at the macro level on the changing nature of modern policing and the challenges for the investigation of crime in a globalised world, as well as debates and comparisons on the details of policing powers and experiences at a micro level in different jurisdictions.
RTE reported yesterday evening that a former prisoner has begun an 8 day High Court action in which he seeks compensation for the humiliation and degradation which he endured during his time at Portlaoise Prison as a consequence of the practice of ‘slopping out’. The phrase refers to the practice whereby prisoners are denied in-cell sanitation and are provided with chamber pots instead. The IPRT says that just over 30% of Irish prisoners ‘slop out’. The Irish Times has further details this morning. The Human Rights Committee expressed concern about the prevalence of the practice in its 2008 examination of Ireland. We will have comprehensive commentary as and when more details of the case emerge. Until then, this article in the 2008 Judicial Studies Institute Journal by Dr. Ursula Kilkelly and Claire Hamilton (from p. 74 especially) is an excellent guide to the human rights issues involved.
Dr. Ursula Kilkelly of University College Cork , who currently serves as chair of the Irish Penal Reform Trust has an informative article on the detention of children in today’s Irish Examiner. The article promotes a new report, which will be launched today by the Irish Penal Reform Trust. The report is titled Detention of Children in Ireland: International Standards and Best Practice. We have already posted on the report here.