Oireachtas Joint and Select Committees
Wednesday, 28 November 2018
Joint Oireachtas Committee on Justice, Defence and Equality
General Scheme of Sex Offenders (Amendment) Bill 2018: Discussion
Dr. Margaret Fitzgerald-O'Reilly:
It definitely needs to be strengthened if it is going to be put on the Statute Book. There are several issues inherent in the actual wording of the proposed revision that need to be cognisant of the implications for constitutional and human rights challenges. Currently, the wording of the provisions are not strong enough to live up to any potential future challenges on the grounds of the right to travel, the right to liberty in the context of freedom of movement and to privacy rights in particular. One has to look at the jurisprudence of the European Court of Human Rights on deprivations and restrictions placed upon freedom of movement and the circumstances in which oppressive or unnecessary restrictions on somebody’s freedom of movement have been deemed to be a violation of Article 5 of the European convention. We need to establish terminology which allows us to incorporate that issue of necessity and proportionality within the meaning of the restriction or the prohibition on travel abroad.
This would prevent it from being open to challenge on grounds of arbitrariness.
Following on from that point, what we mean by "restriction" is not clear. In the Bill's present form, it is assumed that the judge will decide whether the person will be allowed to travel. That is unsatisfactory, as it renders the situation unclear and arbitrary. Some aspect of it should be based upon evidence adduced, for example, a specifically identifiable risk that has come to the authorities' attention via the report of a probation officer or something to that effect. There must be necessity and proportionality under our Constitution and the European convention. The purpose of the travel also needs to be considered, which could require a change in the wording of the current provision. If we incorporated certain requirements that a court must take into consideration, it could lend credit to the assertion that the restriction is necessary rather than arbitrary, take into account the fact that people sometimes need to travel, for example, in order to procure work or as part of their jobs, and would not impinge on their right to earn a livelihood. It would also allow people to enjoy family rights under our Constitution and Article 8. The wording needs to be examined in this context and we need to be clear about what we mean by "restriction".
The overarching - I hate to use the word "problem" - concept that we need to consider is the resources issue. If we are discussing restrictions on certain destinations or within a certain timeframe, there needs to be a way of implementing that effectively. To some extent, this would involve supervision. Is the Garda, the Probation Service or the court supposed to supervise? Would the court have to make subsequent orders or judgments against the individual in the event of his or her falling out of line with the restrictions? It also might involve authorities in another jurisdiction having to supervise our citizens, which leads to a resources issue, a question of communication, which is important, and other practical issues that may be difficult to resolve. We need to be cognisant of these matters if this provision is to be framed in statute.