JF v Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 14 July 2015
• Neutral Citation: [2015] IEHC 468
• Court: High Court
• Docket Number: RECORD NO: 2012/2735P
• Date: 14 July 2015

IN THE MATTER OF SECTION 5(1) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT, 2003.

BETWEEN

J.F.

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

THE IRISH HUMAN RIGHTS COMISSION

NOTICE PARTIES

[2015] IEHC 468

RECORD NO: 2012/2735P

THE HIGH COURT

Crime & Sentencing – S. 8 (3) (a) of the Sex Offenders Act, 2001 – Criminal Law (Rape) Amendment Act 1990 – Art. 38 and Art. 40 of the Constitution of Ireland – Due process of law – Fair procedures

Facts: Following the conviction and sentence of the plaintiff for more than two years under s. 4 of the Criminal Law (Rape) Amendment Act 1990, for the offence committed when he was a minor, he became subject to the mandatory reporting requirements under Part 2 of the Sex Offenders Act 2001, and the second named defendant charged the plaintiff under s12 of the said Act of 2001 for failure to comply with those requirements after his release. In the proceedings, the plaintiff now sought the declarations that s. 8 (3) (a) and s 11 (2) of the Sex Offenders Act, 2001 were invalid to art. 38 and art. 40 of the Bunreacht na hÉireann and that a child offender should be entitled to a greater discretion in respect to the time imposed under the Act of 2001. The plaintiff contended that s. 8 of the said Act was unconstitutional as it imposed reduced reporting periods for the persons who were minors at the time of the conviction & sentencing but not for the persons who were minors at the time of the commission of the offence.

Mr. Justice Binchy dismissed the proceedings. The Court held that in order to determine the validity of any provision, the test of proportionality must be applied. The Court must ensure that the constitutional rights of the plaintiff were proportionate to the objectives sought to be achieved by the Act. The Court found that the imposition of the registration requirements on the persons already convicted for sexual offences were neither punitive nor restrictive. The Court opined that the mandatory notification regime was reasonable and aimed to ensure public safety in general. The Court held that the difficulty lay in the fact that it merely put an additional burden on the convicted persons to report about their whereabouts for an indefinite time period but that was just and fair keeping in lieu the gravity of the offence committed by them. The Court held that s. 12 of the Act of 2001 did not impose any strict liability because before charging a person under the said section, the compliance by the authorities of s. 9 of the said Act, namely the obligation to notify a person of part 2 of the said Act, must be proved on evidence. The Court found that the plaintiff in the subject case was informed of the consequences of non-compliance of the notification requirements as per procedures established by the law.

JUDGMENT of Mr. Justice Binchy delivered on the 14th day of July, 2015

Introduction

1 In these proceedings, the plaintiff challenges the constitutionality of various provisions of the Sex Offenders Act, 2001, (hereinafter ‘the Act’) specifically section 8(3)(a), Section 11(2) and section 12 of that Act. In the proceedings as originally issued, the plaintiff also sought declarations pursuant to section 5 of the European Convention on Human Rights Act 2003 that each of those sections is incompatible with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, but at the commencement of the trial of the action, the plaintiff withdrew application for any reliefs on these grounds.

Background Facts

2 The plaintiff in these proceedings was born on the 13th of November, 1983. The plaintiff encountered a difficult upbringing, with both of his parents suffering from severe alcoholism. The plaintiff himself began drinking alcohol when he was eight years old. On the 1st of December, 2003 the plaintiff was convicted of the offence of rape contrary to section 4 of the Criminal Law (Rape) Amendment Act 1990. The offence dated back to September, 1997, when the plaintiff was thirteen years of age. The circumstances of the offence were that the plaintiff grew up with his younger nephew, with whom he was very close. The plaintiff, while not having a full appreciation of his actions, engaged in a sexual act with his nephew.

3 Upon becoming aware of the offence, the plaintiff's family liaised with An Garda Síochana. It was arranged that provided the plaintiff attended and completed a two year course in Our Lady's Hospital for Sick Children, criminal proceedings would not be instituted. The plaintiff attended the course for eighteen months. However, upon gaining an insight into his actions and an appreciation of the gravity of the offence which he committed, the plaintiff found it difficult to cope and developed an addiction to heroin. As a result, the plaintiff was expelled from the course six months prior to its completion and charges were brought against him in relation to the incident.

4 On the 8th of March, 2004, when he was twenty years of age, the plaintiff pleaded guilty to rape contrary to section 4 of the Criminal Law (Rape) Amendment Act 1990 and was sentenced to thirty month's imprisonment. Having been convicted of a sexual offence, the plaintiff became subject to certain mandatory reporting requirements under Part 2 of the Sex Offenders Act 2001 (‘the Act’). In particular, having been sentenced to a term of imprisonment of two years or more, the plaintiff was subject to the notification requirements (set out below) in section 10 of the Act for an indefinite period by virtue of s 8(3)a of the Act. This requirement took effect, pursuant to section 8(3) of the Act from the ‘relevant date’ which, in turn, is defined in section 6 of the Act as being the date of conviction, which in this case was the 8th of March, 2004. As stated above, he was sentenced to thirty months imprisonment on 8th March, 2004, and he was released on 4th January, 2006.

5 Section 9 of the Act requires prison authorities to notify, in writing, a person to whom Part 2 of the Act applies that he or she is subject to the requirements of Part 2 of the Act before the person is released from prison.

6 On 25th June, 2011, the plaintiff was sentenced to imprisonment for six months for offences unrelated to these proceedings. On 29th November, 2011, prior to his release from prison in connection with that offence, the plaintiff signed an acknowledgment that he had been advised of his obligations under Part 2 of the Act and specifically under section 10 of the Act, of his obligation to notify An Garda Siochana of his name, address and date of birth within seven days from the date of his release from prison, and further of any subsequent changes in his name or address within a period of seven days. The plaintiff, who gave evidence in the proceedings, confirmed that he was aware of his obligations to notify An Garda Síochana and that he had received notification of these obligations (and that he had signed the form of acknowledgment of receipt presented to the Court) prior to his release from prison.

7 The plaintiff was released from prison on 2nd December, 2011. He took up temporary residence in Judge Darley's hostel, Dublin on 8th February, 2012. The Court was not told whether or not he had informed the authorities as to where he was between 2nd December, 2011 and 8th February, 2012. The plaintiff's evidence as to what happened after he took up residence in Judge Darley's hostel is confusing. On the one hand he appeared to say that he did notify Gardaí of his address; on the other hand he advanced excuses for not doing so. He stated that he was only made permanent in Judge Darley's hostel on his sixth day there i.e. 14th February, 2012. He also indicated that at this time his girlfriend was pregnant, his parents were sick and he was on methadone treatment. This latter factor he said clouded his judgement around that time. In any case, on 23rd February, 2012 the plaintiff was charged with an offence under section 12 of the Act 2001 alleging that he had not complied with his notification obligations under Section 10 of the Act. Those proceedings have been adjourned pending the outcome of the plaintiff's challenge to the constitutionality of the above mentioned provisions of the Act. The Court was informed that it is the intention of the DPP to prosecute the plaintiff on a summary basis, although the offence has been made indictable pursuant to section 13 of the Criminal Law (Human Trafficking) Act 2008.

8 The plaintiff has since spent the majority of his adult life in prison, with his offending linked to supporting his drug addiction. The plaintiff has not committed any other sexual offences.

Legislation

9 The Sex Offenders Act 2001, was enacted to require notification of information to An Garda Síochana and to enable certain requirements to be imposed upon individuals who have been convicted of sexual offences, in the interest of the common good. Part 2 of the Act of 2001 establishes the requirements of sex offenders to notify certain information to An Garda Síochana. Section 7 of the Act of 2001 states:

‘7.—(1) Without prejudice to subsection (2) and section 13 and 16 (7), a person is subject to the requirements of this Part if he or she is convicted of a sexual offence after the commencement of this Part…’

10 Section 8 of the Act of 2001 sets out the period for which a person is subject to requirements under Part 2 of the 2001 Act, and draws a distinction between individuals convicted and sentenced as adults, and those convicted and sentenced as minors:

‘8.—(1) A person who, by reason of section 7, is subject to the requirements of this Part shall be so subject for the period referred to in subsection (3) or, in the case of a person referred to in section 7(2), so much (if any) of that period as falls after the...