Ex -Post -Facto Laws

mrjoneill

I’m not interested on the running saga of Larry Murphy but the legal implications in how can retrospective criminal law can be applicable. I don’t see how he can be made report his address to Gardai as this requirement comes under Sex Offenders Act, 2001 s 10, Murphy was convicted in 2000 before the act came into place. Retrospective criminal law has no effect and breaches the Rule of Law. This act is a criminal sanction and like all criminal law applies from what was in force at the time of the offence was committed. So Murphy is now a free man to do as he pleases under the law.

FreudianSlippers

I'm not sure I understand the question. He was convicted of a sexual offence and went to prison. During his stint in prison, the Sex Offenders Act, 2001 commenced. As he was serving his sentence in prison at the time of commencement of the Act, he is clearly subject to the requirements contained in the Act according to Section 7(2)(b)

MagicSean

OisinT wrote: »

I'm not sure I understand the question. He was convicted of a sexual offence and went to prison. During his stint in prison, the Sex Offenders Act, 2001 commenced. As he was serving his sentence in prison at the time of commencement of the Act, he is clearly subject to the requirements contained in the Act according to Section 7(2)(b)

I think the op is implying that the imposition of the requirements of the sex offeners act is an extra punishment and is the same as increasing the sentance of a serving prisoner or imposing an additional fine.

Same situation if a person was convicted of a driving offence and a year later the offence was made a disqualification offence. It would be unfair to go back through the years and ban everyone who was convicted before it was a disqualification offence.

FreudianSlippers

Surely if that was the case then we'd have seen some cases challenging the Act as unconstitutional contrary to Article 15.5?
I think it is fair to impose this requirement on people currently serving their sentences but there must be some legal backing for this... I just don't know what that is.

Our man in Havana

I doubt there is any legal backing at all for this. But it is indeed strange that no one has challenged this.

mrjoneill

I must say I’m flummoxed at the authorities view on the subject here in Ireland which I’m sure any first year law student should be familiar with and I’m just wondering is there a silence on this matter because of the awfulness of what the situation presents.
The essentiality of the right is to be protection from retroactive criminal law and has generally been accepted without argument. Literature on the justification for the principle is scarce. Yet, it has become well accepted that individuals have such a right. The principle has been enunciated in various declarations of human rights from 1789. Nevertheless, there are several examples in international, Australian and British law where the principle has been ignored or (at the very least) circumvented. The Nuremberg trials of the late 1940s are one such example as the decision of the House of Lords in Shaw v. Director of Public Prosecutions in 1961 and the Commonwealth's "bottom of the harbour" tax legislation of 1982. In each case, the actions of the defendants were considered so morally repugnant that the principle of non-retroactivity was relaxed so as to allow them to be punished.
However, the ECHR is quite clear on the matter, and it’s this is the most applicable application of the principle now.
Article 7 of the European Convention on Human Rights
Prohibits the retrospective criminalisation of acts and omissions. No person may be punished for an act that was not a criminal offence at the time of its commission. The article states that a criminal offence is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under their domestic law at the time, so long as it was prohibited by international law. The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed.

If I was Larry lawyer and he sought my advice, it would be give them the two fingers he has served his sentence.

FreudianSlippers

Well, 2 points off the top of my head on this subject.
Firstly, it is important to point out that Australia has no constitutional provision prohibiting retroactive laws. Similarly, the UK has no outright ban on retroactive laws and indeed because of Parliamentary sovereignty they can pass whatever retroactive laws they deem fit.

Secondly, you point out Art 7 of ECHR which, as you state prohibits punishing for an act which was not criminal at the time. In this circumstance we are not punishing for an act which was not criminal at the time, we are imposing conditions on the convicted person following their release from prison.
He is not being convicted of another offence - which would be contrary to Art 7 of ECHR and Art 15.5.1 of Bunreacht na hÉireann.

There is a difference between retroactive charges and retroactive conditions. IDK, perhaps I'm just playing Devil's advocate.

drkpower

mrjoneill wrote: »

I must say I’m flummoxed at the authorities view on the subject here in Ireland which I’m sure any first year law student should be familiar with and I’m just wondering is there a silence on this matter because of the awfulness of what the situation presents.

Article 7 of the European Convention on Human Rights
The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed.

A first year law student should be capable of googling. As the registration requirement doesnt represent a penalty, it is not a retrospective application of a penalty. http://www.humanrights.ie/index.php/2010/08/12/electronic-monitoring-of-offenders/
Existing post-conviction measures which pertain to sex offenders are contained in the Sex Offenders Act 2001. Part 2 imposes a duty on a convicted sex offender to notify the Gardaí of his/her name, address and any change thereof after serving his sentence. Geoghegan J upheld the constitutionality of this part in Enright v Ireland and the Attorney General on the basis that the registration requirement does not constitute a penalty, and is a proportionate measure to protect the rights of other citizens.

mrjoneill

While the UK has not a written constitution it still has unwritten constitutional principals one being on retrospective criminal sanction what happened it those cases was the exception. I don’t think this is just a Common Law provision but a international law provision. I take on board your view on conditions and charges but there is no getting away from the operative part here of the 2001 Act in it imposes a retrospective criminal sanction. The key is retrospective criminal sanction.

mrjoneill

Interesting was not aware of the case but it seems to me to be a constitutional expansion just like that of the Shaw case on a statement made after the expiration of lawful detention. Seems to me its playing with words while in effect it imposes an additional sanction.
I still think this is the application of Retrospective law and the Courts decision is not in keeping with the principal of retrospective criminal law or the provision of the ECHR. Would like to see the ECHR pronounce on it.

MagicSean

While we are on the topic. What happened with the statutory rape laws that were repealed as unconstitutional because they didn't allow for a defence of mistake? How were the new laws brought in without a load of convictions being overturned?

mrjoneill

If you were convicted under the old law your conviction still stands only those who appealed or whose appeal was allowed can seek the protection of the striking down by the courts of the provisions of strict liability of that act.

Victor

I imagine Mr. Murphy might want the Garda to know where he is, so as to speed his rescue fromthe lynch mobs.

In any case, do other released prisoners need to register with the Garda on their release on licence?

mrjoneill

Whatever the Murphy sideshow I feel this is, the removal of a pivotal legal principal and a retrograde inroad into civil liberties. From my reading of Enright it’s an all out effort to find away to circumvent the principal of non retrospective criminal law. Hard cases make bad law. With all these written in stone principals being eroded what is next. When is a "not offence an offence"?

what others say of it

---

http://www.humanrights.ie/index.php/...-of-offenders/
“This provision essentially imposes an additional period of control on the sex offender, and commentators such as Tom O’Malley have questioned its constitutionality. It is arguable that in the light of Enright, the validity of the pertinent section would be upheld on the basis of proportionality and consequentialist concern for public protection.”

http://arrow.dit.ie/cgi/viewcontent.cgi?article=1011&context=aaschsslarts
“The requirement to notify the Gardaí of one’s movements and to ensure compliance with a protection of persons order impose considerable burdens on persons against whom they have been ordered. Such obligations, being court sanctioned and imposing restrictions on the behaviour of individuals, could arguably constitute penalties in their own right, in addition to the sentence of imprisonment to which they attach. However, there appears to be some conflict within judicial decisions regarding the characterisation of such obligations as punishment. This debate has arisen in relation to the Sex Offenders Act 2001 , but the principles derived from that case law are also applicable here.
Requirements regarding notification.
The constitutionality of the notification requirements contained in the Sex Offenders Act 2001 has been upheld in Enright v Ireland . [72] The Supreme Court concluded that these requirements did not constitute a penalty or part of a penalty or punishment. Notification requirements have also been upheld in England; [73] by the European Court of Human Rights [74] and even more onerous obligations have been sustained in US case law. [75]
The Irish case law regarding the notification requirements is of some assistance when analysing the nature of the provisions at issue and the likelihood of success in any constitutional challenge to these measures.
Enright applied: punitive intent
In Enright itself, Finlay-Geoghegan J in the High Court took a number of factors into account in deciding that the notification requirements were constitutionally sound. In reviewing a number of authorities, [76] Finlay-Geoghegan J concluded that in order to be considered part of a criminal penalty, a restriction or forfeiture which, allied to the main sentence, must be considered to be punitive in intent and effect. However, the fact that any disability or restriction which attaches to a criminal sanction may have such a punitive or deterrent element does not per se mean that it should be categorised as a penalty.
Finlay-Geoghegan J decided that the 2001 Act itself did not evidence an intent on behalf of the Oireachtas that the registration process be considered punitive. Looking at the long title of the Act, the learned judge laid emphasis on the fact that the requirements were stated to be in the interest of the common good and, significantly, that the imposition of such requirements also indicated a purpose of rehabilitation.
When assessing the comparable requirements in section 26, the long title of the Act does not demonstrate a clear intention of the Oireachtas as to the purpose of the requirements. Nor do the Dáil debates on the issue. Of course, the avowed purpose of the Legislature when attempting to deal with organised crime was seeking to act in the common good in the prevention and punishment of such offences. However, there is no indication of the secondary aim of rehabilitation on either the face of or the presumed intention of the Oireachtas in this regard, in fact, quite the opposite might be inferred. The court also placed emphasis on the fact that the time limits would be proportionate to the risk posed by offenders at the date of conviction and the possibility of discharge of the requirements by a court at a later date.
The question of risk is an interesting introduction by Finlay-Geoghegan J as risk of reoffending is not generally considered an aim of sentencing. [77] In the judgment, risk also seemed to be peculiarly related to sex offenders, as the court demonstrated in its analysis of the expert evidence on the
condition. It is not so clear that it has similar application to offences under Schedule II of the 2007 Act. Furthermore, the 2007 Act makes no discrimination between offenders, all of whom are subject to notification requirements regardless of their original offence, be it one of murder, possession of a firearm or otherwise, and with no assessment of the future risk of their reoffending.
In deciding if the registration procedure had such a punitive intent and effect, Finlay-Geoghegan J was assisted by a number of US decisions, in particular Kennedy v Mendoza-Martinez , [78] which laid down seven factors to address the punitive effect of a statute. In concluding that there was no such punitive effect, the court took into account, inter alia , the fact that though section 10 of the 2001 Act did impose a burden on an offender, it did not restrain him in his movements or activities or place him under a disability. It was held that the requirements were, in any event minimal, having the purpose of protecting the public and were not excessive in terms of the extent of intervention. In addition, the registration requirements could be considered as a deterrent rather than retributive. This distinction is somewhat fine as punishment may comprise deterrent elements and is not only a retributive concept. Again, the court referred to the “therapeutic” context in which registration was the lowest form of an intervention programme to prevent relapse. [79]
Moreover, Finlay-Geoghegan J held that the imposition of a notification requirement did not constitute a disproportionate interference with the guarantee of fair procedures under Articles 38.1 and 40.3 of the Constitution, given the purpose of the Act was to protect the constitutional rights of other citizens. Following the tests developed in Tuohy v Courtney [80] and Heaney v Ireland [81] as applied in subsequent decisions, [82] the court held that the test of proportionality was passed.
The court in Enright relied on expert evidence which showed that sexual offenders present a significant risk to society by reason of their tendency to relapse; that it is a condition which cannot generally be cured, and which should be thought of in terms of management of risk and the facilitation of personal and social control rather than providing a “cure.” [83] It was held that the particular nature of sexual crime meant the notification requirements were of assistance in facilitating these aims and so were rationally connected to the objective of protecting society from offenders who may relapse and imposed a minimal burden on such offenders.
Application to Section 26
When assessing the potential application of such principles to the section 26 notification requirements, it is clear that the Oireachtas’ transmutation of registration requirements from their original locus of the sex offender registration to more general categories of offence is problematic. While there is no doubting that a court would pay significant attention to the intention of the Oireachtas to protect the public from all serious offenders who may offend again, such as those targeted by the 2007 Act, and the rights of other members of the public, it is not so obvious that the Enright decision can be easily applied to assume automatically that section 26 is constitutionally sound. The court laid great emphasis on the particular nature of the crime involved and expert evidence on reoffending and the particular characteristics of sexual offenders. The need to extend this to a whole range of other offences would have to be cogently proven rather than assumed. While the court held that the notification requirements did not infringe an individual’s liberty impermissibly, it is further submitted that this was a very narrow definition of liberty. [84] The requirement to inform the Gardaí of one’s movements and plans may fulfil a legitimate aim, but is unrealistic to contend that such contact with the criminal justice authorities and the potential impact on reintegration that this involves does not place significant restraints on an individual’s freedom of movement and freedom to choose his or her own residence. There may well be a chilling effect on such plans brought about by the knowledge that it may potentially be a breach of the order and an allied reluctance to contact the Gardaí concerning the making of such plans. In addition, the court in Enright clearly took cognisance of the avowed purpose of rehabilitation and the management of the risk posed by sexual offenders in the Sex Offenders Act 2001 , placing weight on this feature of the Act in finding that there was not an impermissible interference with liberty. No such motivations can be assumed here. The section 26 orders are made on foot of a criminal conviction. There is an obvious difference between an order being made without any criminal sanction being involved and those which arise in conjunction with a criminal conviction, whereby an individual has already proven themselves a threat to the rights of others. However, it is nonetheless imperative that the fact of conviction should not allow the state to interfere with an individual’s liberty for a significant period after the expiration of a sentence. A sentence of imprisonment records society’s censure and is designed, in part, to effect retribution on the individual, with rehabilitation as a permissible aim. [85] However, once such a sentence had expired, the State had no further claim on the individual. It must always be borne in mind that the individuals subject to such orders may have criminal convictions in the past, but the primary sentences for these offences have already been served. The fact that a very particular scheme with a number of aims and unique characteristics has been upheld in Enright should not warrant the extension of similar procedures without compelling justification. Taking into account the imposition of such orders at sentencing stage Subsequent decisions on the Sex Offenders Act 2001 have suggested that obligations such as notification requirements may in fact represent a penalty. In DPP v NY [86] Fennelly J held that in the case of a person with a low likelihood of reoffending, the application of the Act “constitutes a real and substantial punitive element” and the court may have regard to it in deciding on penalty. GD v Ireland [87] held that enrolment on the sex offenders’ register was “in itself a punishment.” In CC v Ireland, [88] Hardiman J was of the view that enrolment on such a register was a “very formalised stigma” and a matter of “intense shame” to an individual and his or her family. Placement on the register would also be incompatible with some forms of employment. In light of these considerations, Hardiman J had no hesitation in regarding the compulsory enrolment as a punitive consequence of conviction.
An analysis of these conflicting decisions was given by Clarke J in PH v Ireland . [89] Clarke J reviewed the state of the case law. The learned judge looked at the concept of “secondary punishment” alluded to in NY and GD. The argument that placement on the sex offenders’ register was now being treated as part of the punishment was, however, rejected. Clarke J held that such requirements were merely an “additional burden placed upon a convicted person which must be weighed in the balance in all the circumstances of the case in order to determine an appropriate sentence.” [90] These were no different to the many “adverse consequences” which may attach to a criminal conviction, such as the loss of employment, to which a sentencing court may pay attention. The matter remains unresolved with the later Supreme Court judgment in CC making it clear that notification requirements may have a punitive nature. From this case law, therefore, it is clear that a court in sentencing a person for an offence under Schedule II of the Criminal Justice Act 2007 may take into account the notification requirements when passing sentence. [91] Gerard Murphy argues in the context of the “drug trafficking register,” that this may have the ironic and unintended effect of a sentencing court imposing a lesser sentence than might otherwise have been the case in light of the obligations which take effect after sentence. [92] Whatever about the likely effect of part 9 on sentencing practice, the attempt to extend the reach of the state long after conviction and the expiration of sentence through monitoring of individuals is to be regretted. The legitimacy of and necessity for the extension of a procedure designed originally to deal with the peculiar requirements of sex offenders and upheld in a case in which a court was faced with the potential result of a convicted sex offender avoiding reporting requirements and having the scheme declared unconstitutional to many other categories of offence is questionable. In the space of six years, registration requirements and tracking have been extended from a targeted and select category - that of sex offenders - to offenders found guilty of drug trafficking offences and now more general offences of violence and possession of dangerous articles. It is clear that registers have developed something of an appeal for policy-makers and the burgeoning of such devices tends to suggest that their use will be extended further. A plethora of legislative measures as opposed to investment in social and other responses have been thrown at the prevention of recidivism. This is despite the lack of appraisal of the existing facilities in terms of effectiveness and the administrative burden on the Gardaí. “

Tom Young

That last post was really difficult to read and follow. Can you try using the quote feature?
Tom

mrjoneill

It was largely a cut and paste from two websites which are quoted at the start of the cut and paste to explain the reason for the circumvention of the convention.

drkpower

Make it digestable; nobody wants to read endless chunks of text that someone else wrote.