We are delighted to welcome this Guest Post from Dr Margaret Fitzgerald-O’Reilly. Dr Fitzgerald-O’Reilly is a lecturer in Law and member of the Centre for Criminal Justice at the University of Limerick.

 

The recent incident in Athlone, where two young children were lured into an apartment and subjected to a horrendous sexual attack, has sparked a fresh but familiar public outcry of condemnation about sex offenders. Of all the categories of offenders, sex offenders stand as the most villainous and loathsome in the public eye, and emotions run as high as the demand for something to be done to protect potential victims (the term ‘survivor’ is now more accepted than ‘victim’), particularly children. One such demand that has frequented media coverage both in Ireland and other jurisdictions is that of public access to information about sex offenders.

Since the enactment of the Sex Offenders Act 2001, which introduced notification requirements, supervision orders, sex offender orders and other requirements for convicted sex offenders, the focus upon post release monitoring has intensified. Such monitoring has become an essential element of contemporary crime management, particularly in attempting to reduce the risks posed by perceived dangerous categories like sex offenders. Yet the “spectre of the mobile yet anonymous sexual offender” continues to loom in public consciousness and there has come an intense desire to know the whereabouts of such offenders. In today’s world knowledge has become the all-important means of providing security, the populist believe being that the more knowledge we have the safer we will be.

The present position in relation to disclosure of information is that there is no broad public right of access to information on sex offenders subject to the requirements under the Act. However, it is acknowledged that in exceptional circumstances, the provision of appropriate information to the public, including parents, is possible. In 2012 the Minister for Justice, Equality and Defence again confirmed that if the Gardaí have reason to believe a particular high risk sex offender poses a real and immediate danger, they are free to tell individuals who need to know. Disclosure in such circumstances is considered to be reasonable and necessary.

In 2012 the Child Sex Offenders (Information and Monitoring) Bill 2012 was introduced as a private members Bill. This Bill proposes to enable parents and guardians to enquire whether persons coming into contact with their child or vulnerable adult have been convicted of a sexual offence or otherwise pose a danger. It provides for a similar entitlement for persons in authority in schools and clubs. Part 2 of the Bill creates the ICSO Scheme (Information on Child Sex Offenders) which is modelled on Sarah’s Law in the U.K. It is however more restrictive insofar as only the parents and guardians of a child or vulnerable adult and persons in authority in schools and clubs have the right to request disclosure. Furthermore, while information may be disclosed if it is deemed proportionate to the risk posed, there is no obligation to disclose any information, where it is determined that there is no appreciable risk or where the release of information would not materially assist the applicant to take any additional preventative steps.

Essentially the Bill in its current form aims to put the current administrative issue of disclosure in Ireland upon statutory footing. Thus the suggestion that disclosure is an entirely new concept is based on a misinterpretation, or perhaps rather a lack of knowledge of the current position. However, the benefit of legislating for disclosure is that it might introduce an element of clarity for the public on this issue – a point recognised by a Pilot evaluation of Sarah’s Law in the U.K. In recent days Mr Alan Shatter has indicated support for the general scheme proposed under the Bill. However the Minister has also stated that at present the specific provisions contain a number of practical difficulties and human rights issues. Thus it seems likely that going forward the proposals will be revamped and subsumed under a government Bill.

While the interest in and support for information disclosure is understandable, proposals such as these preserve many common misconceptions surrounding sex offenders. Much public angst derives from a perception that all sex offenders are prone to reoffending, despite empirical evidence demonstrating that the rate of re-offending for sex offenders is lower than for most offenders and recognition that not all sex offenders pose the same level of risk. Thus targeting all sex offenders as a group is not necessarily a proportionate response, considering that the perceived risk is confined to a minority. Furthermore, studies into sexual offending have repeatedly found that most sexual crime is committed by individuals known to the victim (for example DRCC, The SAVI Report (Dublin: The Liffey Press, 2002), Department of Justice Equality and Law Reform, The Law on Sexual Offences, A Discussion Document (Dublin: Stationary Office, 1998), RCNI , Hearing child survivors of sexual violence (RCNI, 2013)). Disclosure schemes can have the undesirable effect of reinforcing the idea of ‘stranger danger’ and does little to protect children or adults who may be living with or otherwise have a relationship with the offender. Furthermore, while disclosure laws are strongly endorsed by the public, who believe that knowing where sex offenders live can enhance their ability to protect themselves and their children from sexual victimisation, there is very little empirical evidence or evaluation in other jurisdictions (such as the U.S. and U.K.) to support any assumptions about the effectiveness (in reducing recidivism) of such schemes. The concern is that such schemes can create a false sense of security for parents, without actually delivering any tangible safety benefits. Moreover, it has been noted in relation to schemes in operation in the U.S. and U.K. that disclosure can cause undue stress for parents unless it is accompanied by advice on how to use the information to enhance safety. Any scheme introduced in the Irish context should contain provision for dealing adequately with the burden of responsibility that is placed upon parents and others notified under the scheme, especially given that the current proposals create offences for breaches of confidentiality. Finally, as the case of X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire [2012] EWHC 2954 demonstrates, it would be prudent for any future proposals to incorporate an opportunity for the person, about whom disclosure might be made, to be asked if he wishes to make representations. As the Court in X (South Yorkshire) noted, the absence of this opportunity means the decision maker might not have all the information necessary to conduct the balancing exercise which he is required to perform justly and fairly.

Public safety is undoubtedly an important concern, but the ‘need to know’ must to some extent be balanced with individual rights and with the ability of individuals to become reintegrated into society, which will ultimately be in the public interest. Any attempts to introduce broader public access to information should be resisted, while accepting that in some circumstances controlled disclosure may be the best way of providing adequate protection.