The control continuum: analysing the scope and impact of post-release measures for offenders

AuthorMargaret Fitzgerald
PositionB.C.L., LL.M. (Criminal Justice), PhD Candidate, University College Cork
2010] The Control Continuum 1
For many years the system of crime and punishment has
incorporated a concept that once an individual has served the
punishment for his crime, his debt to society has been paid, and
the criminal justice system has no further claim over him.
This idea that the individual would then be “free” undoubtedly
stemmed from a desire for punishment to be proportionate and
finite. Ever since Cesare Beccaria argued so eloquently for
proportionate punishment, the law has sought to hold this
principle as a beacon of justice and humanity within the criminal
justice system.1 Due process values within the system dictate that
an offender must be treated fairly and that punishment must be
proportionate to the crime and the criminal who commits that
crime.2 In dealing with offenders the law has been mindful of a
number of things. Prevention, deterrence, retribution and
rehabilitation have become the primary purposes of punishment
and it is within this capacity (of meting out punishment to accord
with these rationales) that the principle of proportionality is most
There is another concept, however, that has progressively
begun to operate in punitive policy, and that is the concept of risk.
Our society has become increasingly risk-averse, and authorities
are reluctant to permit an individual to be released without some
form of post-release control and monitoring.3 As part of a new
* B.C.L., LL.M. (Criminal Justice), PhD Candidate, University College Cork.
1 See Beccaria, On Crimes and Punishment (Leghorn, false imprint Haarlem,
1764); Young, On Crimes and Punishment, introduction (Indianapolis, 1986).
2 See for example: Court of Criminal Appeal in People (DPP) v. McCormack
[2000] 4 I.R. 356; Supreme Court in People (DPP) v. M [1994] 3 I.R. 306;
O’Malley, Sentencing Law and Practice (Thomson Round Hall, 2nd ed, 2006).
3 See generally Garland, The Culture of Control: Crime and Social Order in
Contemporary Society (Oxford University Press, 2001); Hebenton and
Thomas, “Sexual Offenders in the Community: Reflections on Problems of
Judicial Studies Institute Journal [2010:1
risk-aversion strategy, a number of provisions have been
introduced in the past decade, that permit judges at sentencing
stage to impose certain post-release conditions upon an offender,
or alternatively permit subsequent applications to be made to a
court for an order to control and restrain an ex-offender’s
behaviour in the community. This paper will examine the
provisions that have been enacted upon sex offenders, drug
trafficking offenders and other serious offenders, namely under
the Sex Offenders Act, 2001, the Criminal Justice Act, 2006, and
the Criminal Justice Act, 2007. Under these Acts ex-offenders can
be subject to supervision, notification requirements and to a
variety of other orders that act as a means of movement and
behaviour control. Such orders are in addition to an ordinary
sentence upon conviction, and represent a significant departure
from the notion that once a sentence has been served the legal
system has no further claim over an offender.
Although the rationale for post-release measures focuses
largely upon the prevention of crime, one of the inevitable
consequences for ex-offenders is that their sentence does not end
after imprisonment. For many the effects of a conviction can last
for life, and for others it can last for a substantial and often
indefinite period of time into the future. Thus it seems that there
is no such thing as a de jure sentence. This may be in
contradiction to the important principle of proportionality.
Retaining control of the individual post-release may have the
unintended consequence of excluding and marginalising the
individual, and ultimately make it more difficult for him to be
rehabilitated and re-integrated into mainstream social life.
The paper will be divided into a number of sections examining
the various types of orders that exist under recent legislation,
categorised in terms of the offenders upon whom they are
imposed: namely sex offenders (SOA 2001), drug traffickers
(CJA 2006), and serious offenders under the 2007 provisions.
The author will explain where these provisions have come from,
their purpose and effect, and will do so having regard to some
Law, Community and Risk Management in the USA, England and Wales”
(1996) 24 International Journal of the Sociology of Law 427.
2010] The Control Continuum 3
broader criminological and penological issues such as control,
risk, reintegration and public protection.
An awareness of sexual offending has built up in Ireland
in recent times, and details of sexually-motivated crimes have
been brought into the sphere of public consciousness.4
A consensus on the need to establish an Irish sex offender register
developed and widened into a post-release arrangement package
that has also incorporated provisions on post-release supervision
and sex offender orders, similar to that in the UK and elsewhere.
A. The Register
The establishment of a register in the UK initiated the idea
of having a sex-offender register in this jurisdiction,5 which was
surprising because there was no evidence of any urgent “need” to
establish such post-release arrangements at the time. The idea was
not motivated by any high profile crime committed within the
jurisdiction like that of Megan Kanka in the US or Sarah Payne in
the UK, or by the release of any notorious sex offenders like that
of Sidney Cooke in the UK. White argues that the fact that no
such domestic examples existed may be a large factor in why
emphasis was placed on the image of the foreign sex offender.6
Allegations arose that foreign sex offenders were using Ireland as
4 The foreign media (such as Sky News and British papers) which are
accessible by the Irish public, have reported high profile murders like that of
Megan Kanka in the US and Sarah Payne in the UK, and stories of the release
of convicted sex offenders in the UK and how they are being dealt with.
E.g. “Bed-sit rapist becomes subject of first legal exclusion order”
Independent, 24 December 1998; “500 paedophiles to be tracked by satellite
tags” Observer, 21 December 2003; “Paynes ask Blunkett for ‘Sarah’s Law’”
Guardian, 21 June 2002. See also McGuinness, Report of the Kilkenny Incest
Investigation (Dublin: Stationery Office, 1993).
5 Thomas, “Protecting the Public: Some Observations on the Sex Offenders
Bill 2000” (2000) 10 I.C.L.J. 12, 12.
6 White, “Controlling Sex Offenders: Raising Critical Questions about the Sex
Offenders Bill 2000” (2001) 4 I.J.F.L. 8, 11. White argues that unnecessary
and unhelpful attention has been placed upon the “foreign” sex offender in
deciding the appropriate measure to take in dealing with sex offenders.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT