Irish Sex Offender Laws and the Right to Privacy
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| DOI | 10.1177/203228441100200408 |
| Subject Matter | Analysis and Opinions |
440 Intersentia
IRISH SEX OFFENDER LAWS
AND THE RIGHT TO PRIVACY
L B*
ABSTRAC T
is article provide s a general overview of sex o ender laws in Ireland and their
compatibility with the European Convention on Human Right s, namely Article8 , the
right to privacy. An analysis of public noticat ion schemes such as Megan’s Law in the
US and Sarah’s Law in England and Wales provide a backdrop for a di scussion on the
proposed introduction of such mea sures in Ireland. e competing interes ts of public
protection and oenders’ rights are al so discussed in the conte xt of punitive measures
such as incarceration and registration versus rehabilitation and reintegration.
Keywords: I reland; privacy; sex oenders
1. INTRODUCTION
ere is a strong public perception that sex oenders are “ incorrigible” and
demonstrate a very high possibility of re-oending.1 Because of th is, protecting the
safety of children and the public from convicted sex oenders who may re-oend
following their release f rom prison while also tr ying to protect the fundamental
human rights of the oender has long been a contentious issue i n Ireland. As this
jurisdiction shares many legal traditions w ith the US and England a nd Wales, it is
logical to present an overview of the law relating to sex oenders and their human
rights in these ju risdictions before evaluating the Ir ish criminal justice system.
* PhD Candidate , Centre for Crimina l Justice, School of Law, Universit y of Limerick.
1 T. Fortney and others, “My ths and Facts about Sexua l Oenders: Implications for Treatment a nd
Public Policy”, Sex ual Oender Treatment 4, 20 07, 2(1).
Irish Sex Oend er Laws and the Right to P rivacy
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 441
2. ORIGINS OF SEX OFFENDER REGISTRATION,
NOTIFICATION AND DISCLOSURE
Megan’s Law was introduced in 1996 in the United States and requi red every state to
create some procedure for notifying the public when convicted sex oenders are
released into t he community (community notic ation).2 It has been contended that
these laws were passed by legislators in a spontaneous reaction to highly publicised
and sensationalised cases involving young chi ldren3, in an attempt to assuage the
public, without proper research into the pos sible repercussions such laws may have on
the privacy rights of t he oender.4 e dissemination of information ranges from
state to state, from posting t he oender’s name, address and photo on the Inter net to
notifyi ng only those that live within t he vicinity of the oender.5 It is unclear whether
Megan’s Law has been a success however – ndings of some empirical st udies report
that it has not made a measurable dierence i n deterring sex oenders against future
crimes6 and that compliance with registration requirements actua lly decreased
because of the scheme7, while other studies found a sig nicant decline in recidivism
among ‘high-risk ’ sex oenders8 and that notication made families “more likely to
take steps to protect themselve s”.9 However, it has been largely contended that, because
these laws are only aimed at convicted sex oenders, and also because most sex
oenders are actual ly known to the victim a nd oen occur in a familia l setting10, they
may be ineective as they on ly target a “very limited pool of oender typ es”.11
2 Which amended the Jac ob Wetterling Crime s Against Chi ldren and Sexu ally Violent Oender
Registrat ion Act 1994 (US).
3 Jacob Wetterling was abduc ted in 1989 and has never b een found; Megan Ka nka was raped and
murdered by a convicte d child molester who lived i n her neighbourhood.
4 R. Freeman-Longo, “Rev isiting Megan’s law and Sex O ender Registrat ion: Prevention or Problem”
in J. Hodgson and D. Kel ley (eds), Sexual violence: Policie s, Practices and Challe nges in the United
States and Cana da, Praeger Publish ers, 2002, 6.
5 In California , more than 63,00 0 sex oenders’ name s and addresses a re listed on the Ca lifornia
Department of Ju stice’s website. A map of the state al lows the public to select any are a and see the
complete list of regi strants in that a rea. See , acce ssed 17/12/11.
uk/crime/child-sex-oender-disclosure/>, accessed 8December 2011; ‘Most
county&county =imperial&lang=E NGLISH>, accessed 10December 2011.
6 K. Zgoba and others, ‘Mega n’s Law: Assessing the Pr actical and Monet ary Ecacy’ D ecember 2008
7 J. Dillon and L. Jur y, “Sarah’s Law Unworkable Say Paedoph ile Experts”, e Independent 6August
2000.
8 G. Duwe and W. Donnay, “e Impact of Megan’s Law on Sex Oe nder Recidivism: e M innesota
Experience” (20 08) 46(2) Criminology 411.
9 D. Finkelhor, “e Prevention of Ch ildhood Sexua l Abuse”, 19(2) e Future of Children, 200 9, 169.
10 Oce of the Attor ney General, State of C alifornia, D epartment of Justic e
facts.htm >, accesse d 8December 2011; Home Oce UK, ‘Child Sex O ender Disclosure Scheme’
sex oenders know n to victims’ Iri sh Times (23November 2011).
11 R. Lincoln a nd C. Ronken, “Civil L iberties and sex oende r Notication Laws”, e National L egal
Eagle 7, 2001, 7(2).
Lorraine Ba rron
442 Intersenti a
e constitutionality of such laws has been challenged in the United States
Supreme Court with regard to due process a nd ex post facto clause violations, but the
courts have ultimately upheld their constitutionality. In Connecticut Department of
Public Safety v Doe12, convicted sex oenders challenged the requi rement that all
convicted sex oenders had to register, as they sa id this did not establish which sex
oenders were actually da ngerous to the public and so v iolated their procedural due
process rights. e Supreme Court held that their conviction alone was enough to
include them on the register. In Smith v Doe13, convict ed sex oenders challenged the
constitutionality of a law that meant they had to register severa l years aer being
released from prison, argu ing that it violated the ex pos t facto clause, whereby it is
prohibited to retroactively change the lega lity of actions committed prior to the law
being enacted. e Supreme Court held that because the requirement to register was
preventative rather than punit ive, it did not violate the ex post facto clause. Claims
that Megan’s Law infringes on the oender’s right to privacy have also been
unsuccessfu l. In Doe v Poritz14, the court ma intained that “the state interest in public
disclosure substantially outweighs” the privacy rights of the oender15 and asserted
that the Constitution did not prevent society from tryi ng to protect itself from
convicted sex oenders.16 It has been argued that US courts place a higher value on
the disclosure of informat ion to the public than on an oender’s right to privacy
because an indiv idual’s right to freedom of speech seems to be more highly regarded
than an i ndividual’s reputation.17 is can be seen in the frequent use of cameras in
US courtrooms, publicly televised trials and the fact that tria ls in the US courts are
“presumptively open”18, wh ich means that the public and the media have the rig ht to
attend crimina l trials. Couple this with t he fact that any member of the public can be
instantly noti ed via email if a new sex oender has been added to t he online database
instead of having to “ta ke the initiative and hunt (this information) down yourself ”19,
it is clear that the privac y rights of the oender are eclipsed by the public protection
goals of the US government.
12 538 U.S 1,7,23 S. Ct. 1160, 155 L. Ed. 2d 98 (2003).
13 538 U.S 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (20 03).
14 142 N.J. 1, 662 A.2d 367, 413, 36 A.L.R. 5th 71 1 (1995 ).
15 Ibid., 406.
16 N14 as per Wilentz CJ.
17 L. Grin a nd K. Blacker, “Megan’s Law and Sarah’s Law: A Comp arative Study of Se x Oender
Community Not ication Schemes in t he United States and the United K ingdom”, 46 Crim. L. Bull.
987, 2010, 10 05.
18 Richmond Newsp apers Inc. v Virginia, 4 48 U.S. 555, 568, 100 S. Ct. 2814, 65 L. Ed. 2d 973, 6 Med ia
L. Rep. (BNA) 1833 (1980), where the court held that t he First Amendment guar anteed the public
and the press th e right to attend crimi nal trials.
19 National Sex O ender Database Homepa ge
2011.
Irish Sex Oend er Laws and the Right to P rivacy
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 443
3. ADOPTING A MODIFIED US APPROACH
England and Wales introduced a more restr icted pilot scheme of public disclosure to
four police force areas in 200820 ; the Child Sex Oenders Disclosu re Scheme,
commonly known as ‘Sarah’s Law’. is was implemented in response to a highly
publicised media campaign led by the mother of Sarah Payne, a young girl who was
raped and murdered by a convicted paedophile i n 2000. e aim of the pilot process
was to provide the public with an opportunity to make enquiries or raise concerns
about persons who had unsupervised access to children.21 Prior to this, the Brit ish
government had vehemently resisted demands for public access on a blan ket basis to
the sex oenders’ register, giving rea sons such as a fear of vigilantism 22, apprehension
that it may drive oenders ‘underground’23 and also that public disclosu re had not
been successful i n reducing sexual oences i n the USA.24 Instead, informat ion was
disclosed in a controlled fashion by Multi-Agency Public Protection Arrangements
(MAPPA), the responsible authority tasked with the management of registered sex
oenders in England and Wales, to a member of the public in very limited
circumstances25, but a “general rig ht of public access” did not ex ist.26 When the pilot
scheme of Sarah’s Law initia lly rolled out, only parents, g uardians and ca rers of
children had the opportunity to make enquir ies about persons whom they had
concerns about, but in March 2009 t his was extended to include “anyone who had a
concern about an individua l”.27 Research was conducted by the Home Oce to
examine whether t he pilot scheme contributed benecially to t he existing
arrangements, wit h results showing that the scheme provided a better mec hanism for
the public to make inquir ies regarding any concerns they had and al so that it resulted
20 Warwickshir e, Cambridgeshire , Cleveland and Hampsh ire.
21 H. Kemshall a nd others, “Child Sex Oende r Review (CSOR) Public Disclosure Pi lots: A Process
Evaluation”, 2nd edition, Ma rch 2010, 2 , accessed 12Dece mber 2011.
rds.homeoce.gov.uk /rds/pdfs10/horr32c.pdf >, accessed 12Novem ber 2011.
22 BBC News, “Vigila nte Attack on Innocent Man” (25 July 200 0) /2/hi/uk _
news/848737.stm>, accesse d 12 November 2011.
23 K. Fitch, “Megan’s Law: Does it Prot ect Children? (2) – An Updated R eview of Evidence on
the Impact ofCom munity Noti cation as Legis lated for by Megan’s Law in the United St ates”,
NSPCC, 200 6, 8 c.org.uk/infor m/publications/down loads/meganslaw2 _wdf48102.pdf>,
accessed 12Dece mber 2011.
24 “Witch Hunt: Would a British Version of “Megan’s Law” Work?”, e Economist, 12 August 2000
25 R v Devon County Coun cil ex parte L [1991] 2FLR 541 – here, the court uphe ld a disclosure by a soc ial
worker to a woman whose new co habitee was suspec ted of assaulti ng children; R v North Wales
Police ex parte A B and CD (1997 ), e Times , 14July; R v North Wales Police ex parte orpe (199 8),
e Times, 23 March – in these cases , the court upheld a di sclosure by the pol ice to neighbours
where two people had moved to t he area with cri minal records for chi ld abuse.
26 T. omas, “Sex Oender Com munity Notic ation: Experie nces From America”, e Howard
Journal 218, 2003, 42(3).
27 N21 iii.
Lorraine Ba rron
444 Intersentia
in improvements in the formalisat ion of the disclosure process.28 Sarah’s Law was
rolled out nationally in March 2011 across all police force areas in England and
Wales.29 MAPPA assess each enquiry they receive to determi ne whether the oender
does actual ly pose a substantial risk of harm to a particular child before they decide
whether or not to disclose information about an oender, including conducting risk
assessment checks and face-to-face interviews with the applicant. e police must
then keep a record of such disclosures, e xplaining their reasons for doing so, as it had
been noted that previous disclosures by MAPPA prior to the pilot scheme had been
inconsistently recorded regarding t he ocial’s reasons for the disclosure and to whom
the information was di sclosed to.30 e person to whom the information is disclosed
is also required to treat that information as condential31- the information is only
given to the applicant so that steps c an be taken to ensure the protection of the child
in questi on.32 erefore, although England and Wales have followed the US system of
disclosure to a point, the proces s is a lot more restrict ed and condential than that of
the US.33 Research has concluded that the scheme in Eng land and Wales is eective
and important, in that it satises public demand and a llays fears and anxieties the
public may have34, but what about the r ights of the oender?
Prior to Sarah ’s Law, challenges to the origi nal disclosure process came before the
courts in R v Devon Count y Council ex parte L35, R v North Wales Police ex parte AB
and CD36 and R v North Wales Police ex parte orpe37, where in all cases it was
maintained t hat disclosure should only be used in exceptiona l cases, implying that t he
English courts were protective of the oenders’ right to privacy. is right is now
provided for in the Human Rig hts Act 1998 which gave domestic eect to the rights
enshrined in the Eu ropean Convention on Human Rights. is means that the
judiciary “ has to be seen to be taking the huma n rights agenda seriously”.38 However,
since Sarah ’s Law has been rolled out nationally a case has not yet come before the
28 Ibid., ii.
29 M. Hughes, “Sa rah’s Law to be Rolled Out Nation ally” e Independent (3March 2010).
30 J. Cann, “Assessing t he Extent of Discret ionary Disclo sure under the Mult i-Agency Public
Protection Ar rangements”, 2007, Home Oce w.homeoce.gov.uk/rds/pd fs07/r286.pdf>,
accessed 17Decemb er 2011.
31 D. Robertson, “Mega n’s Law Can’t Replace Vigilance ”, e Journal (23September 2008).
32 See “Parent’s Protect!” website
17December 2011.
33 R. Lieb, H. Kemsha ll and T. omas, “Post-Release Controls for Se x Oenders in the US and the
UK”, International Journal of Law and Psychiatry 229, 2011, 34(3).
34 Ibid., 230.
35 [1991] 2FLR 541.
36 (1997 ) e Times, 14July.
37 (199 8) e Times, 23Ma rch.
38 H. Power, “Disclosing Information on Sex Oenders: e Huma n Rights Implic ations” in A.
Matravers (ed.), Sex Oen ders in the Community – Ma naging and Reduci ng the Risks (Willan
Publishing 2 003) 75.
Irish Sex Oend er Laws and the Right to P rivacy
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 445
courts challenging the further infringement of the right to privacy. In light of the
court’s earlier comments that disclosure should only be used in except ional
circumstances , it will be interesti ng to see whether Sarah’s Law will be found to be
compatible with the ECHR and 1998 Act , as information to members of the public has
arguably been made much more accessible since t he introduction of this scheme and
the circumsta nces do not appear to be particularly “exceptiona l”.
Cases challeng ing the compatibility of the sex oender register and notication
requirements with the right to privacy under Art icle8 of the ECHR had previously
concluded that there was no breach of Art icle8. In Adamson v United Kingdom39, the
applicant argued th at the requirement to register amounted to a breach of Article8 as
he had only committed a single oence. e C ourt held that although there was an
interference with the applica nt’s right to privacy, it was deemed “necessary and
proportionate” in protecting the safety of the public. In Mas sey v United Kingdom40,
the applica nt clai med that indenite noti cation41 was an interference with his rig ht
to a private life but again the Court held that such interference was necess ary and
proportionate to prevent crime. Earlier, in Ibbotson v United Kingdom42, a c ase taken
by one of the rst convicted sex oenders to regis ter under the Sex Oenders Act 1997,
the requirement to register was held not to be an additional punishment. e Cour t
held that registration was de signed to be a preventative measure to deter the oender
from re-oending, and was not a pu nitive measure. In all these cha llenges, the Court
examined whether the requirements to register and notify the police of their
movements were proportionate; that is, necessar y to full the ai ms that the legislation
was seeking to pursue . By balancing the gravity of the har m caused to the victims of
such sexual oences with the risk of public humiliation or attack for the oenders,
they found the interference wit h the oenders’ private life to be proportionate, in the
absence of any evidence of risk of possible har m to the oenders. However, the Court
alluded to the fact t hat if, in the future, the registration or notication requirements
were seen to lead to possible risk of public humiliat ion or attack on the oender, or led
to information becoming k nown to the general public that was not already publicly
available, then its decision may be dierent.43 is statement by the Court becomes
increasingly signi cant in light of the recent national roll out of the d isclosure scheme
in England and Wales. is c oncern was highlighted by Ma rietta de Pourbaix-Luindin
in a report by the Parlia mentary Assembly in 2010, who believed that, shou ld a law
providing for community notication be introduced in any Counci l of Europe
member state, there would be a risk that the Court may nd it to be in breach of
39 (1999) App. No. 22293/98.
40 (2003) App. No. 14399/02.
41 Convicted sex o enders sentenced to 30 month s or more imprisonment are s ubject to lifeti me
notication requi rements.
42 (1998) app. No. 40146/98.
43 “No Easy Answers: S ex Oender Laws in the US”, 19(4)(G) Human Rights Watch, September 20 07,
124 , acce ssed 21December 2011.
Lorraine Ba rron
446 Intersentia
Article 8 as bei ng a disproportionate interference with t he right to privacy of an
oender.44 ere have been no challenges to Sarah’s Law and the disclosure scheme
regarding the right to privacy as of yet, but it is submitted that, f rom the foregoing
case law, maintaining t he safety of children and the protection of the public wil l
trump the oender’s right to privacy i n any constitutional challenge to t his legislation.
However, following research from the US that community notication does not in
fact serve the legit imate function of public protection45, if it can be suc cessfully arg ued
that the public are not made any safer by t he disclosure of information about an
oender, then this law may be struck down as bei ng an “indefensible violation of civil
liberties”.46
e most recent challenge to the regist ration and notication requirements came
before the Supreme Court in R (on the application of F) v Secretary of State for th e
Home Department47, where the applicants claimed that indenite notication
interfered with their r ight to privacy under Article 8. ey argued that life-long
notication may be necessar y for some oenders, but that there should be a n appeal
mechanism for low-risk or no-risk oenders to have their names removed from the
register and the requi rement to notify discontinued. Because t here was no such device
for review, they claimed that such requ irements were a disproportionate interference
Supreme Court, upholding the previous decisions of the Divisional Court and the
Court of Appeal, held that t he indenite notication requi rements “constitute a
disproportionate interference with A rticle8 rights because they ma ke no provision
omas notes the UK Government’s response to this r uling as a mixture of “popula r
punitivi sm and xenophobia”49, with the Pr ime Minister, David Cameron, saying that
he wants to do only “the mini mum necessary” to comply with the Court ruling a nd
the Home Secretary, eresa May, describing the judgment as appa lling.50 Despite
these views, t he government was required to remedy this incompatibility and i n 2011
the Home Oce announced its response in the form of a Dra Order of the Sexual
Oences Act 2003 (Remedial) Order 2011. A Chief Police Ocer will carry out an
assessment of the potential risk posed by ex-oenders subject to lifetime registration
44 Parliamentar y Assembly, Document 122 43, “Reinforcing Mea sures Against S ex Oenders”,
4 May 2010 y.coe.int/documents/workingdocs/doc10/edoc12243.htm>, accessed
25November 2011.
45 R. Bandy, “Measuri ng the Impact of Sex O ender Notication on C ommunity Adoption of
Protective Beh aviours” (2011) 10(2) Criminology and Public Policy 258.
46 Ibid.
47 [2010] UKSC 17.
48 Ibid., para. 58 .
49 T. omas, “Lifetime Re gistration”, 175 JPN 135 (2011) 1.
50 A. Travis, “David Ca meron Condemns Supreme Court Ruli ng on Sex Oenders” e Gu ardian,
16February 2011.
Irish Sex Oend er Laws and the Right to P rivacy
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 447
and notication requirements een years aer release in order to decide whet her
continued notication is necessary in each indiv idual case. If the risk is perceived to
be low, or if there is no potential risk to be found, then t he requirement by the applicant
to register may be discontinued. However, there is no opportunity to appeal the
decision made by the Chief Police Ocer to an independent body, and the right of
appeal for removal from the register aer een years is not automatic, as it is i n
Scotland.51 e National Council for Civil Liberties, k nown as Liberty52, remarked
that the disparaging comments by the government were disappointi ng, as they felt
that compliance with t he Court’s judgment would help to ensure that the register
would remain “targeted a nd eective”53, as it would mean that less ti me and resources
would be spent on tracking ex-oenders who pose lit tle or no risk of re-oending so
that the responsible authorities could concentr ate on those presenting a high risk .
ey also felt that a review solely by a Chief Police Ocer would not be considered
compliant with the judgment, a s the Court made reference to an “appropriate
tribuna l”54 being sucient to remedy the interference, which Liberty feel would be
better served by a court or independent tribunal.55 is concern was echoed by the
Human Rights Joint Comm ittee, who felt that review should only be conducted by an
“independent and impar tial body”.56 Liberty concluded t hat the government proposals
in the dra Remed ial Order were “half-hearted ” and awed, and highlighted t hat this
policy would not serve to promote and protect the sa fety of the public. It is submitted
that if the proposals i n the dra Order are adopted, t here is a possibility of futu re
litigation on their compatibilit y with Article8, as from Ibott son, Adamson and Massey
it is clear that in order to comply with Ar ticle8, any interference in an individua l’s
right to privacy must be “necessa ry and proportionate” in protecting the sa fety of the
public. If it can be shown that t he new Remedial Order does not in fact protect public
safety, it may well fall foul of ECHR pri nciples.
51 Sexual O ences Act 2003 (Remedia l) (Scotland) Order 2011.
52 Liberty prov ides policy re sponses to Govern ment consultat ions on all issu es which have implic ations
for human rights a nd civil liber ties.
53 S. Farth ing, “Libert y’s Submission to the Joint Com mittee on Human R ights report on t he dra
Sexual O ences Act 2003 (Remed ial) Order 2011”, August 2011, 11
joint-committees/human-rights/L iberty_submission_on_ Sexual_Oences _Act_(Remedial)_Order.
pdf>, accessed 21Dec ember 2011.
54 N45, para. 57.
55 N50, 15.
56 Human Rights Joi nt Committee, “P roposal for the Se xual Oences Ac t 2003 (Remedia l)Order
2011”, para. 28, ions.parlia ment.uk/pa/jt2 01012/jtselect/jtrights/2 00/20007.htm#a4>,
accessed 21Decemb er 2011.
Lorraine Ba rron
448 Intersenti a
4. THE IRISH APPROACH A FUSION
In Ireland, sex oenders who are release d from prison are subject to registration and
various notication requi rements, which are provided for in the Sex Oenders Act
2001. While the term ‘register’ is commonly used in this jurisdiction, there is in fact
no actual register and the term is not included in any provision of the 2001 Act. e
only information on the whereabouts of sex oenders i n Ireland is a certicate issued
by the court in relation to thos e convicted of sexual oences, and th is is held centrally
by the Garda Síochána (the national pol ice). is informat ion is then cross-referenced
with the Sex Oenders Noti cation form, supplied by the local police station, in order
to monitor the whereabouts of sex oenders. Simila rly to the system in England and
Wales, Ireland’s register is the centra l strategy used for identifying and monitoring
sex oenders within its nat ional territory.57 However, there are marked dierences
between the two syst ems in relation to indenite notication requi rements.58 Gillespie
argues that t he Irish notication requirements are stricter, as an i ndividual sentenced
to more than two years’ impri sonment is subject to indenite noticat ion requirements
whereas, in England a nd Wales, the prison sentence must be more than thirty
months. 59 However, the Irish system provides a review mechan ism for oenders who
are subject to such indenite noti cation requirements, whereby an oender subject
to such requirements can petition the Circuit Court, which is a court of limited and
local jurisdic tion, to discharge the requirement to notify.60 e Human Rights Joint
Committee in the UK referred to the Irish review system in their response to the
government’s dra Remedial Order proposals, and noted with approval the
involvement of a judicial element in the review process.61 is was compared to the
new system of review in England and Wales as proposed in the dra Order which
involves only administ rative review by the police, a nd it was contended by the
Committee that if the proposed system was more like that of Ireland’s (and other
countries with a rev iew mechanism such as France, Australia and Ca nada) then it
would be less likely to face further challenges for infringement of ECHR rights62 , as
happened in R (on the application of F) v Secretary of State for the Home Dep artment.63
Despite this review mecha nism, Ireland’s sex oender registration a nd notication
laws have been challenged in the courts. When the Sex Oenders Bill was published
in 2000, Wh ite noted that it was unlikely that Irish cou rts would nd these measures
an infri ngement on the substantive rights protected by the Irish Const itution and the
57 T. omas, “Tracking S ex Oenders between the Republ ic and Northern Ireland ” 20(4) ICLJ 113,
2010, 1.
58 A. Gillespie, “ Sex Oenders’ Registe r”, 17(1) ICL J 9, 2007, 3.
59 Ibid.
60 S.11 Sex Oenders Act 2001 (Irela nd).
61 N56.
62 Ibid., para. 28.
63 N47.
Irish Sex Oend er Laws and the Right to P rivacy
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 449
ECHR; because of the seriousness of sexual oending a nd the need to protect the
safety of the public, t hey would likely be held to be a legitimate and proportionate
interference.64 In Enright v Ireland65, the High Court of Ireland upheld the
constitutionality of notication requirements for sex oenders where the applicant
claimed that the requ irement to register under Part 2 of the Sex Oenders Act 2001
aer his release from prison constituted an additional pena lty, which was repugna nt
to Articles15.5 and/or 38.1 of the Irish Constitut ion.66 In deciding whether the statute
was punitive, the Court examined whet her it was the intention of the legislatu re,
either expressly or impliedly, that the noti cation requirements should be considered
a punishment. ey found no evidence of th is to support the applicant’s claims and
instead found that the requi rements were intended to be for the “common good” a nd
were a proportionate measure to protect the rights a nd safety of other citizens while
also aimed at rehabil itating the oender.67 e Court ru led that the requirements
were therefore not punitive. e case of CC v Ireland68 provided a starkly dierent
result, where the Supreme Court of Ireland concluded, a lbeit obiter dicta, that
compulsory enrolment on the sex oenders register was a “punitive consequence of
conviction”.69 is nding by the Supreme Court is also in contrast to the European
Court of Human Rig hts’ decisions in Ibbotson, Mas sey and Adamson where it was
held that notication was not punit ive. Although no reference was made to the ECHR
in the CC case, the de cisions from the Strasbourg Court suggest t hat should a case be
brought against Ireland to the ECtHR regarding the punitive nature of notication
requirements, they would be upheld. However, Gillespie contends that thi s should not
be taken as a given, as the ECtHR may not automatically adopt the same approach
when considering the Irish sy stem.70
In Ireland, the rig ht to privacy for every individua l was established in Ke nnedy v
Ireland71, and wa s dened as “a complex of rights … which may be claimed a s necessary
for the expression of an individua l personality, for purposes not necessarily moral or
commendable, but which … do not endanger … State secur ity, public order or morality,
or other essential components of the common good ” in Norris v Attor ney General.72
Although it is not an express C onstitutional right, it is regarded as an “i mplied right ”
64 C. White, “Control ling Sex Oende rs: Raising Crit ical Quest ions about the Sex Oende rs Bill
2000”, 4(2) IJFL 8, 2001,9.
65 [2003] 2 IR 321.
66 Article 15.5.1° states: “ e Oireachtas shall not decla re acts to be infringements of t he law which
were not so at the date of the ir commission. A rticle 38.1 states: No person shall be trie d on any
crimina l charge save in due course of l aw.”
67 N65 judgment of Geogheg an J at para 3.
68 [2006] IESC 33.
69 Ibid., as per Hardim an J.
70 N58 10.
71 [1987] IR 587.
72 [1984] IR 36 paras. 71–72.
Lorraine Ba rron
450 Intersenti a
under Art icle 40.3.1°.73 e right to privacy for Irish citizens is also protected by
Article8 of the ECHR. However, this rig ht is not absolute and can be interfered with in
the interest of public safety a nd the “common good”. A challenge to Ir ish registration
and notication laws on grounds of t hem being an infringement of the oender’s right
to privacy has yet to come before the cour ts, either at a national or European level. is
may be because Ireland does not have a system of di sclosure of information like Megan’s
Law in the US or Sarah ’s Law in England and Wales, and so the oender’s privacy is
arguably more protected in t his jurisdiction. is could cha nge, however, as legislation
that will a llow the authorities to warn an indiv idual of a sex oender living in the area
is in the process of being int roduced by the Irish government.74 is idea was ra ised by
the Department of Justice i n 200975, who felt that if an oender posed a real and
immediate danger to t he public, then the authorities should be in a position to a lert any
individuals who may need to k now, through the med ia if necessary.76 However, it was
felt that giving the publ ic unrestricted access to this i nformation by publishing names
and addresses of oenders would be counterproductive as it may drive oenders
underground and encourage “witch hu nts”.77 One in Four, an Irish charit y whose work
involves running a sex oender treatment programme, agreed with the proposals
regarding blanket publ ic identication of sex oenders, saying it may interfere with t he
oender’s rehabilitation and may also produce a negative reaction from t he public, but
admitted that in relation to very high-risk oenders it may be necessary for the
authorities to inform indiv iduals if the safety of a ch ild is at stake.78 e Department of
Justice commented that, from t he submissions received from various organisations in
response to their discu ssion document, that the “universa l view” was agai nst
introducing a blanket s ystem of public disclosure like Megan’s Law, but in favour of a
scheme that allowed the police to a lert individuals with a “ legitimate interest” if a sex
oender posed a particu lar danger to the public, si milar to Sara h’s Law.79 e protection
73 Article4 0.3.1°: “e State guarantees i n its laws to respect, and, a s far as practicable, by its l aws to
defend and vind icate the personal ri ghts of the citizen.”
74 ‘Version of Sarah’s Law to be i ntroduced in Ire land’ e Jour nal (12September 2011)
ie/version-of-sara hs-law-to-be-intro duced-in-ireland-224370 -Sep2011/>, accessed 12December 2011.
75 Department of Ju stice and Law Reform, “ e Management of Sex O enders: A Discussi on
Document”, January 2009 T.pdf/Files/FINAL%20
REPORT.pdf>, accesse d 29September 2011.
76 Ibid., 28.
77 Ibid.
78 One in Four, ‘A Response to “e Manage ment of Sex Oenders: A Disc ussion Document ”, A
Submission to Oender M anagement Group, Depar tment of Justice, E quality and L aw Reform’,
April 2009, 5 tp://www.oneinfour.ie/content /resources/One_i n_Four_Subm ission_R E_Sex _
Oenders_ April_2009.pd f>, accessed 13 November 2011.
79 Department of Jus tice and Law Reform, “Su mmary of Views Re ceived on ‘Discussion Do cument on
the Management of S ex Oenders’”, September 2010, par a. 4.7, www.justice.ie /en/JELR/
Summary %20of%20Views%20received%20on%20t he%20Management%20of%20 High%20Risk%
20Sex%20Oenders.pdf/Files/Summary%20of%20Views%20received%20on%20the%20Manage
ment%20of%20High%20Risk%20Sex%20Oenders.pdf, accessed 13November 2011.
Irish Sex Oend er Laws and the Right to P rivacy
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 451
of public safety was stres sed to be the “primary objective” by the De partment of Justice
in the introduction of any such scheme. I n December 2011, the Minister for Just ice and
Equality, Alan Shat ter, announced that amendments to the Sex Oenders Act 2001 are
hoped to be introduced withi n the coming months and it is li kely that a system of
limited public disclosu re will then be legislated for.80
is leaves open the possibilit y for a range of Irish cases cha llenging the
constitutionality of this legislation. However, because the right to privacy is not an
absolute right and can be inter fered with in the interest of public safety, coupled with
the Government’s assertion that public s afety is their primary a im, it is likely that an
Irish applicant chal lenging the proposed provisions would fai l, as the protection of
the safety of the public wou ld conceivably be deemed to outweigh the oender’s right
to privacy, as in the US case of Doe v Poritz .81 ere is no jurisprudence from England
and Wales to examine regardi ng disclosure and the rig ht to privacy but if the US
system of public disclosure, which is arguably signicantly more invasive of an
oender’s privacy than the system in England and Wales and the proposed Irish
system, has been upheld as constitutional, then this adds support to the supposition
that the Irish system would also be upheld as constitutional. However, regarding
compatibility with t he ECHR, if the proposed legislation was seen to be
disproportionate to the aims it sought to achieve, then it may be struck down. In
Smirnova v Russia82, it wa s held that the conscation of a passport had an impac t on
the individual’s day-to-day life which was disproportionate to the aim of the
legislation in question. e ai m of the proposed law in Ireland (and Sarah’s Law) is to
protect the public from potential harm. A law that allows the dissemination of a sex
oender’s personal information to the public at large would undoubted ly have adverse
consequences on the oender’s life and this, according to Shannon, would be
considered a disproportionate measu re.83 Consequently, the oender’s right to
privacy under Art icle8 of the ECHR would be breached as the information would be
available to people who may have no legitimate interest in rece iving such informat ion.84
In applying this logic to the compatibility of the disclosure systems in Ireland,
England and Wales with t he right to privacy under the ECH R it is submitted that,
because these schemes do not provide for blanket public access to information but
instead allow only li mited access on a “need to know basis” where the oender is
shown to pose a serious risk of harm to t he public, these schemes would likely pass
the compatibility test . Despite this, it is important t hat such schemes do not contribute
80 Dáil Deb 15 December 2 011, vol 750, No 2, .ie/dail/2011/12/15/00191.
asp>, accessed 23Decemb er 2011.
81 N13.
82 Nos. 46133/99 and 48183/99, §§96–97, ECHR 2003-IX.
83
G. Shannon, “Repor t of the Specia l Rapporteur on Ch ild Protection: A Re port Submitted to t he
Oireachtas”, November 20 07, 24,
Special_ Rapporteur_on _Child_Prote ction_Geore y_Shannon.PDF>, accessed 2 3December 2011.
84 Ibid.
Lorraine Ba rron
452 Inters entia
to a “gradual erosion of civil liber ties”85 of convicted sex oenders in t he Government’s
desire to protect public safety, and that such schemes a re closely monitored to ensure
transparency a nd to safeguard the oenders’ ever-di minishing rights, because “no
matter how unpalatable the act ions of the oender, he or she is still entitled to some,
albeit residual, protection from unwa rranted interference by the state”86
5. MANAGEMENT AND TREATMENT OF SEX
OFFENDERS PRISON AND BEYOND
Finding a ‘cure’ for sex oenders has been hai led as “impossible” but it is believed that if
oenders can learn to underst and their behaviour then they may be able to control it.87
Rehabilitative strateg ies involving treatment and reinteg ration must be employed in
order to balance the more punitive policie s of incarceration and monitoring.88 In I reland,
there are two basic systems of t reatment for sex oenders – prison-based and communit y-
based treatment. e Depar tment of Justice, who undertook a st udy into the management
of sex oenders in Ireland in 2009, is of the belief that eective inter vention in prison
followed by treatment in the communit y upon release has the p otential to sign icantly
reduce the risk of re-oending a nd therefore increase the safety of the public.89 is has
the dual eect of promoting posit ive outcomes for both the oender and t he public, by
improving the life of the oender a nd enhancing the safety of the commu nity.90
e core aim of the Irish Prison Service is the ca re and rehabilitation of its
prisoners, encouraging t hem to live purposeful and law-abiding lives when they
re-enter society upon release.91 erefore, treatment while in custody is the best way
to prepare an oender for this. In April 2009, the then Minister for Justice, Dermot
Ahern, announced a new pol icy on the management and treatment of sex oenders in
Irish prisons.92 is involves therapeutic intervention with sex oenders while they
are in prison with t he aim of changing the oender’s life in an attempt to reduce the
85 N64 9.
86 Ibid.
87 A. McAlinden, “ Sex Oender Regi stration: Implic ations and Dicu lties for Ireland ”, 10 Irish
Journal of Sociology 93, 2000.
88 A. Matravers, ‘”S etting some Bounda ries: Rethink ing Responses to Sex Oend ers” in A. Matravers
(ed), Sex Oenders in the Comm unity: Managing and Re ducing the Risk s, Willan P ublishing 20 03, 24.
89 Department of Jus tice and Law Reform, “ ‘e Management of Sex O enders: A Discuss ion
Document”, Januar y 2009, 10,
REPORT.pdf>, accesse d 20November 2011.
90 M. Lipsey and F. Cullen, “ e Eectiveness of Cor rectional Rehabil itation: A Review of System atic
Reviews”, prepared for t he Annual Review of Law an d Social Science 29, 20 07, 3.
91 Irish Pris on Service, “Ca re and Rehabilitation: Sex Oend er Programme” < www.irishpr isons.ie/
care_a nd_rehabilitat ion-sex_oender_prog ramme.htm>, access ed 23December 2011.
92 Irish Prison Se rvice, “Sex Oe nder Management Policy: Re ducing Re-oending , Enhancing Publ ic
Safety”, 22Apri l 2009.
Irish Sex Oend er Laws and the Right to P rivacy
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 453
risk of recidivism.93 A National Centre was established at Arbour Hill Prison,
comprising mainly of sex oendi ng prisoners, who can avail of a f ull range of
therapeutic services at this facilit y, with priority being given to those who pose the
highest ri sk.94 It was thought that rather than oenders hav ing to share facilities with
non-sex oending prisoners or sex oenders who did not want to participate in the
services, a “speci c oender population” (all sex oenders) would create an appropriate
therapeutic environment, where the oenders c ould address their behaviour with t he
support of others.95 Two Satellite Centres, located at dierent prisons in Ireland,
oering a less broad range of therapeutic s ervices, wil l accommodate the remainder of
sex oenders who cannot be accommodated at the National Centre, but may later
have the opportunity to t ransfer to the National Centre, following appropriate
assessment and depending on availability of cells.96 e Psychology Centre at the
National Centre, in conjunction wit h the Probation Service, wil l assess the needs and
risk of every oender entering the C entre so that every programme can be ta ilored to
specic individua l needs, as well as formulating an ind ividual sentence plan for each
oender.97 e services available range f rom one-to-one therapeutic interventions
and motivational enha ncement groups to oence-based therapeutic individual and
group interventions.98 Other group programmes available to the oender in prison
have also been reported to be of benet in t he rehabilitation process, such as stress a nd
anger management and cognitive sk ills training , as well as visits from psychiatrists .99
It can be seen from this t hat the Irish system is following the most common form
of treatment used for sex oenders; cognitive be havioural treatment. is is a process
centred on the premise that if an oender wants to change the way they think or
behave they must exami ne and alter their thoughts and belief s and recognise and cope
with their emotions.10 0 Research indicates that this form of treatment is the most
eective and oenders who receive it in prison have a lower rate of reconvict ion than
those who do not.101 Despite this, it is not compulsor y in Ireland for sex oenders to
participate in such progra mmes, and they must volunteer for a place on the course.
Unfortunately, many are reluctant to engage with such t reatment due to a variety of
reasons such as a fear that it would inter fere with fa mily visits if they had to move to
another prison or apprehension that the program me will be emotionally chal lenging,
93 Ibid., 2.
94 Ibid., 8.
95 Ibid., 9.
96 Ibid.
97 Ibid., 11–12 .
98 Ibid., 11.
99 Ibid., 2.
100 A. Moster, D. Wnuk and E. Jeg lic, “Cogni tive Behaviora l erapy Interve ntions With Sex O enders”,
14(2) Jour nal of Correctional He alth Care 111, 20 08.
101 R.K. Hans on and others, “e Principle s of Eective Correctiona l Treatment also apply to Sexua l
Oenders: A Meta-Ana lysis”, 36 Criminal Justic e and Behavior 865–891, 2009.
Lorraine Ba rron
454 Intersenti a
while some are in denia l of culpability for the oence or have unrealistic conv ictions
that they wil l be able to stop themselves from re-oending without treatment.102 e
Irish Prison Ser vice feels that mandatory t reatment will not be as eecti ve as voluntary
participation and a lso raises concern about ethical and lega l issues.103 Instead, it was
felt that strong incentives to attrac t participation would be more benecial and so the
Minister for Justice introduced a p olicy whereby oenders are oered early supervise d
release if they agree to u ndergo treatment in prison.104 is is subject to strict
conditions such as participation in community-based treatment and electronic
tagging if necessary. is move was welcomed by Fiona Neary of the Rape Crisis
Network Ireland and Liam Herr ick of the Irish Penal Reform Trust as it was felt that
if treatment is proven to be eective, t hen anything that encourages t reatment should
be welcomed.105 Although electronic monitoring of sex oenders in Ireland is not
presently in use, legislat ion to introduce it is nearing the nal s tages.106 It is submitted,
however, that if there were legal and ethica l concerns regarding mandatory imposit ion
of prison-based treatment, then the introduction of electronic monitoring could be
open to legal challenges.
Community-based inter vention is vital in the continuation of the oender’s
rehabilitation and their reintegration to society aer release from prison. Without
continuity of treatment, the risk of re-oending is higher.107 e Lighthouse
Programme is a commun ity-based treatment programme for men convicted of child
sexual oences and t his is of paramount importance in carrying on the t herapy that
was started in prison.108 e Irish Prison Ser vice also believe that supervised ea rly
release could play a role in reintegration, as it could provide a vacuum in which the
oender might test their ability to reintegrate in a superv ised and controlled
capacity109, t hus making a gradual transition from prison to community with the
public safeguard t hat if they re-oend or break the conditions of the temporar y release
they will be re-incarcerated. Research has demonst rated that prison-based
intervention, combined with appropriate communit y support, is the best combination
for helping to prevent re-oending.110 In their 2009 Discussion Document on the
102 N91 16 .
103 Ibid., 18 .
104 C. O’Keee , “Sex Oenders oered Early Relea se if they get Treatment”, Irish Examiner, 23Apri l
2009.
105 Ibid.
106 M. O’ Regan, “E lectronic Tagging of sex O enders a Legislative Pr iority, says Shatter”, Irish Times ,
8April 2011.
107 N91 27.
108 Ibid.
109 Ibid.
110 K. Lowden and ot hers, “Evaluation of C olorado’s Prison erapeutic Com munity for Sex Oe nders:
A Report of Findi ngs”, United States Depart ment of Justice 2003; R . McGrath and othe rs, “Outcome
of a Treatment Program for Adu lt Sex Oenders: From Pr ison to Communit y”, 18(3) Journal of
Irish Sex Oend er Laws and the Right to P rivacy
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 455
Management of Sex Oenders111, the Depart ment of Justice highlighted t he positive
eects of Circles of Support and Accountability (COSA) on recidivism reduction in
oenders in Canada.112 C OSA focus on high risk oenders who do not have a system
of support in the communit y to which they are returning to113, and work closely wit h
them in giving t hem the support they require but also compell ing them to address the
consequences of their actions a nd hold themselves accounta ble.114 An eva luation was
carried out on two groups of 60 sex oenders over a four and a half year period; one
group had been involved in the COSA scheme and one had not.115 e resu lts showed
that the level of recidivism in the group that participated in COSA showed a 75%
reduction in sexual recidivism when compared to the other g roup.116 ey also
demonstrated that the number of positive social inuences in an oender’s life also
plays a role in reducing recidivism.117 COSA was established in 1994 to provide a
support network to sex oenders of community volunteers, and was the rst of its
kind.118 Followi ng its success, similar models were introduce d in the US and England
and Wales119 and the Probation Ser vice has recently recommended t hat a pilot be
conducted in Ireland following a st udy they carried out which found “widespread
support” for the introduction of ci rcles of support for sex oenders.120
It is submitted that initiatives such as prison-based therapeutic programmes and
community support schemes are invaluable tools for the rehabilitation and
reintegration of sex oenders into the community. ey are forced to address their
wrongdoings in an environment th at is supportive and constructive, a s opposed to the
stigmatising and socially exclusive environment that registration and public
notication can foster. ey therefore play a crucia l role in addressing the balance t hat
seems to have tipped in favour of public protection at the det riment of the constitutional
and human rights of t he oender.
Interpersonal Violence, 2003; Wil son and others, “Com munity-based S ex oender Management :
Combining Pa role Supervision a nd Treatment to Reduce Recidiv ism”, 42 Canadian Journ al of
Criminology 177–188 , 200 0.
111 N88.
112 Ibid., 26.
113 R. Wilson , J. Picheca and M. Prinzo, “Circl es of Support & Accountability: A n Evaluation of the
Pilot Project in S outh-Centra l Ontario”, 2005, p://publications.gc.ca /collections/
collection _2010/scc-csc/PS83–3–168-eng.p df>, accessed 23Decembe r 2011.
114 Ibid.
115 R. Wilson , F. Cortoni and M. Vermani, “Ci rcles of Support & Accou ntability: A Nat ional Replicat ion
of Outcome Findings ”, 2007, a/text/rsrch/rep orts/r185/r185-eng.pdf>, accessed
23December 2011.
116 Ibid.
117 Ibid.
118 COSA Canada Hom epage, ww w.cosacanad a.com/htm l/the_ beginni ng.html, ac cessed 23December
2011.
119 Wilson, n110.
120 D. Brennan, “Suppor t for Child Abusers aer Ja il”, e Independent , 13December 2011.
Lorraine Ba rron
456 Intersenti a
6. CONCLUSION
Protecting the sa fety of children and the public while safeguarding the f undamental
rights of convicted sex oenders does not have to be an ox ymoron. Registration and
notication requirements can protect the public without signica ntly infring ing on
the oender’s private life if procedures such as review mechanisms are in place.
Similarly, public disclosure ca n protect children who may be exposed to risk without
encroaching on the privacy rights of all oenders if information is not made widely
accessible to the public at large, but instead con ned to persons who have a genuine
need to know if a particular oender is feared to pose a very high risk, based on a
professional assessment. Prison and com munity-based treatment programmes can
also serve to promote public safety in the long-run while at the same time having a
benecial impact on the reintegration of the released oender to the community. A
truly civi lized society should be able to balance these t wo competing interests. It is
hoped that the proposed legislat ion in Ireland regarding disclosure of information
will embr ace this philosophy.
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