P.H. v Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 16 February 2006
• Neutral Citation: [2006] IEHC 40
• Date: 16 February 2006
• Court: High Court
• Docket Number: [2004 No. 626 JR]

[2006] IEHC 40

THE HIGH COURT

[No. 626 J.R./2004]

H (P) v IRELAND & ORS

BETWEEN

P. H.

APPLICANT

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

SEX OFFENDERS ACT 2001 PART II

SEX OFFENDERS ACT 2001 (COMMENCEMENT ORDER) 2001 SI 426/2001 ART 2

CONSTITUTION ART 15.5

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7.1

SEX OFFENDERS ACT 2001 S10

SEX OFFENDERS ACT 2001 S7

SEX OFFENDERS ACT 2001 S7(2)

SEX OFFENDERS ACT 2001 S3(2)

SEX OFFENDERS ACT 2001 S3(3)

SEX OFFENDERS ACT 2001 S8

SEX OFFENDERS ACT 2001 S10(6)

SEX OFFENDERS ACT 2001 S10(8)

SEX OFFENDERS ACT 2001 S11(5)

SEX OFFENDERS ACT 2001 S12

CAHILL v SUTTON 1980 IR 269

ENRIGHT v IRELAND 2003 2 IR 321 2004 1 ILRM 103

WORLDPORT IRELAND LTD, IN RE UNREP CLARKE 16.6.2005

HEALY, STATE v DONOGHUE 1976 IR 325

CONSTITUTION ART 15.5.1

DOE v OTTE 2001 259 S 3D 979

O'KEEFFE v FERRIS 1997 3 IR 463 1997 2 ILRM 161

CONROY v AG & ANOR 1965 IR 411

KENNEDY v MENDOZA MARTINEZ 372 US 144

CONSTITUTION ART 40.3.1

COX v IRELAND 1992 2 IR 503

TUOHY v COURTNEY 1994 3 IR 1

DPP v Y (N) 2002 4 IR 309

DPP v D (G) UNREP CCA 13.7.2004 2004/15/3395

CONSTITUTIONAL LAW

Statute

Validity - Retrospective effect - Prohibition against retrospective increase in penalty -Imposition of criminal penalty which did not exist at time offence was committed -Whether statutory burdens amounted to punishment or penalty - Whether sufficient reason to depart from earlier authority -Locus standi - Whether sufficient standing to challenge constitutionality of impugned provisions of enactment - Whether affected by enactment - Cahill v Sutton [1980] IR 269considered; Enright v Ireland [2003] 2 IR 321followed; People (DPP) v D(G) [2004] IECCA 17 (Unrep, CCA, 13/7/2004) and People (DPP) v NY [2002] 4 IR 309 considered - Sex Offenders Act 2001(Commencement) Order 2001 (SI 426/2001),art 2 - Sex Offenders Act 2001 (No 18), pt 2- Constitution of Ireland 1937, Articles 15.5and 38.1 - European Convention on Human Rights, article 7.1 - Claim dismissed (2004/626JR - Clarke J - 16/2/2006) [2006] IEHC 40, [2006] 2 IR 540

H(P) v Ireland

Facts: The applicant, who had pleaded guilty to certain sexual offences, claimed that certain provisions of the 2001 Act were unconstitutional. Specifically, the applicant claimed that the Act was retrospective to the extent that it imposed certain reporting obligations on persons, such as himself, who had been convicted of specified sexual offences irrespective of whether the offence was committed prior to or subsequent to the coming into force of the 2001 Act and therefore the Act was in breach of Articles 15.5 and 38.1 if the Constitution and Article 7.1 of the European Convention on Human Rights.

Held by Clarke J. in dismissing the application: That the substance of the challenge which the applicant brought in relation to the 2001 Act was the subject of a comprehensive and recent adjudication by this court in Enright v Ireland and the Attorney General [2003] 2 I.R. 321, which held that the Act of 2001 was not unconstitutional as the registration requirement did not constitute a penalty. The plaintiff failed to establish any reasons/grounds for departing from that decision.

Reporter: L.O'S.

1. Introduction

2 1.1 On the 20th March, 2000 the applicant ("Mr. H.") pleaded guilty to certain sexual offences before the Central Criminal Court. On the 19th May, 2000 he was sentenced to 11 years imprisonment for those offences. Mr. H. had been in custody since September 1998. The convictions themselves related to offences that occurred on dates unknown between the 1st April, 1996 and the 31st December, 1996 in respect of a single injured party. Mr. H. appealed against the severity of the sentence and on the 4th October, 2001 the original sentence imposed by the Central Criminal Court was reduced on appeal by the Court of Criminal Appeal to a term of eight years. On that basis and having regard to both the time when he commenced custody and the normal periods of time off Mr. H. was released in September, 2004.

3 1.2 In those circumstances Mr. H. is subject to certain provisions of the Sex Offenders Act 2001 ("the 2001 Act"). By virtue of Article 2 of the Sex Offenders Act 2001 (Commencement) Order 2001 (S.I. No. 426 of 2001) the 2001 Act came into force on the 27th September, 2001. It should be noted, therefore, that while the 2001 Act was not in force at the time of the original conviction and sentence of Mr. H. before the Central Criminal Court, it's provisions were in force as of the time of the variance of his sentence by the Court of Criminal Appeal.

4 1.3 In these proceedings Mr. H. challenges the consistency of certain provisions of the 2001 Act with Bunreacht na hÉireann. In substance his challenge is directed to the fact that the Act, in its terms, is retrospective to the extent that it imposes certain reporting obligations on persons, such as Mr. H., who are convicted of specified sexual offences irrespective of whether the offence of which they were convicted occurred before or after the coming into force of the 2001 Act.

5 1.4 Mr. H. contends that the retrospective nature of the legislation is in breach of Articles 15.5 and 38.1 of the Constitution and is also in breach of Article 7.1 of the European Convention on Human Rights ("the Convention").

In order to have a proper understanding of the issues which arise it is necessary to turn first to a consideration of the statutory scheme.

2. The 2001 Act

2 2.1 Part 2 of the 2001 Act contains provisions under the heading:-

"Obligations of Sex Offenders to Notify Certain Information"

3 2.2 The core provision of Part 2 is to be found in s. 10 of the Act which requires that persons coming within the scope of the Act should notify An Garda Síochána of their name, address, any change of address and certain other information concerning their whereabouts. Such obligation is subject to a criminal penalty.

4 2.3 Section 7 of the 2001 Act specifies the categories of persons who are subject to the above notification requirements. In particular s. 7(2) provides that a person who has been convicted of a sexual offence as defined before the commencement of part 2 of the Act is, nonetheless, subject to the provisions of the Act where a sentence has been imposed and is not yet fully spent.

5 2.4 Sexual offences for the purposes of the Act are defined by reference to the schedule which includes a wide range of sexual offences both contrary to common law and provided for by statute. Certain exclusions are provided for in s. 3(2) for cases where the victim or other party to the offence was of full age and a non custodial sentence was imposed. Furthermore exclusions are contained in s. 3(3) in respect of offences where the guilty party is less than 17 years of age and not more than 3 years older than the victim or other party to the offence.

6 2.5 Therefore it is clear that the requirements of the 2001 Act apply to a very wide range of sexual offences.

7 2.6 Section 8 sets out the period during which the requirements of part 2 are to apply. In simple terms there is a sliding scale referable to the term of imprisonment imposed. The obligation period is indefinite in the case of person sentenced to a term of more than two years, sliding down to a five year period where the accused is not sentenced to a custodial sentence (including, for these purposes, a suspended custodial sentence). The periods are reduced by 50% in the case of persons who were, at the time of sentence, aged under 18 years.

8 2.7 The obligations on a person to whom the Act applies are, as indicted above, set out in s. 10. The principle initial obligation is a requirement to notify name and address to An Garda Síochána within 7 days. Thereafter there is a further obligation to notify any new name used by the person, any change of address, and certain other information where the person is to be away from their notified address (whether within or without the State) for periods in excess of seven days.

9 2.8 Under s. 10(6) each of the notifications required to be given must include the date of birth of the individual and the name or names and address as of the relevant date. Under s. 10(8) the relevant notification can be given either in person or by post.

10 2.9 It should also be noted that a person who is subject to an indefinite obligation to comply with the Act has an entitlement to make application, on notice to An Garda Síochána, to the Circuit Court which court can, under s. 11(5), if it

"Is satisfied that the interests of the common good would no longer be served by the applicant's continuing to be subject to the requirements of (Part 2) make an order discharging the applicant from the obligation to comply with those requirements".

11 2.10 Finally the sanction for failure to comply with the obligations under the section is contained in s. 12 which renders failure to comply "without reasonable excuse" or the giving of false or misleading information, to be an offence punishable on summary conviction to a fine not exceeding the euro equivalent of IR£1,500 or imprisonment for a term not exceeding 12 months or both. Section 13 makes provision for the application of the provisions of Part 2 to certain persons convicted outside the State of similar offences where such persons become resident in the State.

12 2.11 As will be seen from the above, the statutory scheme requires persons who are subject to the Act (including Mr. H.) to notify An Garda Síochána of their name (including any other name which they may from time to time use), their address and any significant movements in the sense of being away from their notified address for a period in excess of seven days.

13 2.12 While the term "sex abuse...