Enright v Ireland
| Jurisdiction | Ireland |
| Judge | Justice Finlay Geoghegan |
| Judgment Date | 18 December 2002 |
| Neutral Citation | 2003 WJSC-HC 4720 |
| Court | High Court |
| Docket Number | [2001 No. 18359 P] |
| Date | 18 December 2002 |
BETWEEN
AND
2003 WJSC-HC 4720
THE HIGH COURT
Synopsis:
CRIMINAL LAW
Sexual offences
Constitution - Declarations - Whether provisions of Sex Offenders Act, 2001 unconstitutional - Sex Offenders Act, 2001 - Bunreacht na hEireann, 1937, article 40.1 (2001/18359P - Finlay-Geoghegan J - 18/12/2002)
Enright v Ireland - [2003] 2 IR 321 - [2004] 1 ILRM 103
The plaintiff was convicted of sexual offences and sentenced to 12 years imprisonment. He commenced proceedings seeking inter alia declarations that certain provisions of the Sex Offenders Act, 2001 were invalid by reason of their repugnancy to the Constitution. The primary challenge was to the constitutionality of s. 7 of the Act.
Held by Finlay Geoghegan J. in dismissing the plaintiff's claim that s. 7 of the Act passed the proportionality test. The imposition of the registration requirements on persons already convicted of sexual offences was rationally connected to the objective of the legislation of protecting society from convicted sex offenders who may relapse.
Citations:
SEX OFFENDERS ACT 20012001 PART 2
SEX OFFENDERS ACT 2001 (COMMENCEMENT ORDER) 2001 SI 426/2001
SEX OFFENDERS ACT 2001 S7(2)
SEX OFFENDERS ACT 2001 S7(2)(B)(I)
SEX OFFENDERS ACT 2001 S3(2)
SEX OFFENDERS ACT 2001 S3(3)
SEX OFFENDERS ACT 2001 S8(3)
SEX OFFENDERS ACT 2001 S8(4)
CONSTITUTION ART 15.5
CONSTITUTION ART 38.1
CONSTITUTION ART 40.3
CONSTITUTION ART 40.1
HAMILTON V HAMILTON 1982 IR 466
CONSTITUTION (US) ART 1(10)
CALDER V BULL 3 DALL 386 1798
COLLINS V YOUNGBLOOD 497 US 37 1990
BLACKSTONE COMMENTARIES
BEAZELL V OHIO 269 US 167 1925
O'BYRNE V MIN FINANCE 1959 IR 1
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7.1
MAGEE V CULLIGAN 1992 1 IR 233
HEALY, STATE V DONOGHUE 1976 IR 325
CONROY V AG 1965 IR 411
KELLY THE IRISH CONSTITUTION 3ED 1994
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999,RE 2000 2 IR 360
HARRIS LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 1995 274
CONSTITUTION ART 38.2
MELLING V O MATHGHAMHNA & AG 1962 IR 1
O'KEEFFE V FERRIS 1997 2 ILRM 161
COMPANIES ACT 1963 S297
PHEASANTRY LTD V DONNELLY 1982 ILRM 512
CARTMILL V IRELAND 1987 IR 192
COX V IRELAND 1992 2 IR 503
OFFENCES AGAINST THE STATE ACT 1939 S34
OFFENCES AGAINST THE STATE ACT 1939 S10
CONSTITUTION ART 40
(M) MURPHY V M(G) & GILLIGAN V CRIMINAL ASSETS BUREAU (CAB) & ORS 2001 4 IR 113
DOE V OTTE (US) UNREP REINHARDT NO 99–35845 9TH CIR 9.4.2001
US V WARD 448 US 242 1980
RUSSELL V GREGOIRE 124F 3D 1079
KENNEDY V MENDOZA MARTINEZ 372 US 144
ADAMSON V UK 1999 28 EHRR 209
WELCH V UK 1995 20 EHRR 247
DPP V CAWLEY UNREP HERBERT 14.6.2002
STANBRIDGE, STATE V MAHON 1979 IR 214
CRIMINAL LAW (JURISDICTION) BILL 1975, RE 1977 IR 129
TUOHY V COURTNEY 1994 3 IR 1
STATUTE OF LIMITATIONS 1957 S11
HEANEY V IRELAND 1994 3 IR 593
R V OAKES 1986 1 SCR 103
CHAULK V R 1993 3 SCR 1303
CONSTITUTION ART 26 OF THE EMPLOYMENT EQUALITY BILL, RE 1996 1997 2 IR 321
PLANNING & DEVELOPMENT BILL 1999 2000 2 IR 321
BLASCAOD MOR TEO V CMSR PUBLIC WORKS (NO 3) 2000 1 IR 6
QUINNS SUPERMARKET LTD V AG 1972 IR 1
BRENNAN V AG 1983 ILRM 449
O'BRIEN V MANUFACTURING ENGINEERING CO LTD 1973 IR 334
SEX OFFENDERS ACT 2001 S10(7)
SEX OFFENDERS ACT 20012001 PART 4
CAHILL V SUTTON 1980 IR 269
Justice Finlay Geoghegan delivered on the 18th day of December, 2002.
The facts giving rise to these proceedings are not in dispute. On the 18 th June, 1983 the plaintiff was convicted of sexual offences and sentenced to twelve years imprisonment. The Sex Offenders Act, 2001came into force by ministerial order, the Sex Offenders Act, 2001(Commencement) Order 2001, SI No. 426 of 2001 on the 29 thSeptember, 2001. On that date the plaintiff was still serving his twelve year sentence in Arbour Hill Prison. He was released from prison on the 17 th June, 2002. Prior to his release he was required by the Chief Officer in charge of Arbour Hill Prison to sign a notification to the Garda authorities pursuant to Part 2 of the Sex Offenders Act, 2001.
Prior to that date the plaintiff commenced these proceedings seeking inter alia declarations that certain of the provisions of the Act are invalid by reason of their repugnancy to the Constitution.
The primary challenge made on behalf of the plaintiff in these proceedings is to the constitutionality of s. 7(2) of the Act of 2001. Section 7(2) applies Part 2 of the Act to a person who has been convicted of a sexual offence before the commencement of the Part and at such commencement
a "(a) the sentence to be imposed on the person in respect of the offence has yet to be determined, or
(b) a sentence has been imposed on the person in respect of the offence and
(i) the person is serving the sentence in prison
(ii) the person is temporarily released under section 2 or 3 of the Criminal Justice Act 1960, or
i (iii)the sentence is otherwise still in force or current."
The plaintiff in these proceedings factually comes with in the class of persons specified in s. 7(2)(b)(i).
Section 10 sets out the obligations of a person to whom the part applies. The essential obligation is to notify the Garda Siochana of his or her name (or names if or he or she uses more than one), date of birth and home address. The initial obligation for a person serving a custodial sentence is to notify with in seven days of release from prison or in the case of a non custodial sentence from conviction.
There is also an obligation to notify any change of name or change of home address or if the person lives at a different address with in the State for an aggregate of seven days in any twelve months to notify that new address. If a person intends leaving the State he or she is obliged to notify such intention and if known the proposed address outside the State. On a return to the State after an absence of a continuous period of seven days or more the fact of the return and the address to which a person returns must be notified.
The notification may be given orally to any member of the Garda Siochana at a station which is a divisional or district headquarters or in writing by post to any such station.
The persons to whom the part applies are those convicted of a sexual offence, as defined, after the commencement of the part or those convicted prior to the commencement if they are with in the class specified in subs.7(2). Sexual offence is defined for the purposes of the Act in s. 3 as an offence listed in the schedule subject to certain limited exceptions in subs.(2) and subs. (3) of s. 3. The offences listed in the schedule appear to include most if not all offences, both common law and statutory of a sexual nature against both adults and children.
The period during a which person is subject to the requirements of Part 2 are set out in s. 8. The periods run from the date of conviction and are specified in subs. (3) in the following terms:
a "(a) an indefinite duration if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for a term of more than 2 years,
(b) 10 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than 6 months but not more than 2 years,
(c) 7 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of 6 months or less, or
(d) 5 years if the sentence imposed on the person -
(i) is one of imprisonment for any term, the operation of the whole of which is suspended (but, if the operation of that term is revived by the court, whichever of the preceding paragraphs is appropriate shall apply instead of this subparagraph), or
(ii) is otherwise than one of imprisonment."
Subsection 4 provides a reduction of the period often, seven and five years specified to five and a half, three and a half and two and a half respectively for a person who at the date of sentencing was under eighteen years.
Section 8 is subject to s. 11 which entitles a person who is subject to the requirements of Part 2 for an indefinite period to apply to the Circuit Court for an order discharging the person from the obligation to comply with the requirements of Part 2 on the grounds that the interests of the common good are no longer served by his or her continuing to be subject to them. An application may not be made prior to the expiry often years from the date of the applicant's release from prison.
Section 12 makes it an offence for a person without reasonable excuse to fail to comply with the obligations in s. 10 or to notify the Garda Siochana of any information which he or she knows to be false or misleading in any respect.
Section 13 applies the requirements of Part 2 to certain persons convicted outside of the State of a sexual offence. Finally s. 14 provides that where the conviction of a person after the commencement of the Part makes them subject to the requirements of the Part that the court before which he or she is convicted must issue a certificate stating
a "(a) that the person has been convicted of the offence,
(b) the sentence, if any, imposed on the person in respect of the offence and
(b) that the person has become subject to the...
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