H468
Judgment
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Neutral Citation [2015] IEHC 468 THE HIGH COURT RECORD NO: 2012/2735P IN THE MATTER OF SECTION 5(1) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT, 2003. BETWEEN J.F. PLAINTIFF AND
IRELAND AND THE ATTORNEY GENERAL DEFENDANTS AND
THE DIRECTOR OF PUBLIC PROSECUTIONS THE IRISH HUMAN RIGHTS COMISSION NOTICE PARTIES JUDGMENT of Mr. Justice Binchy delivered on the 14th day of July, 2015 Introduction Background Facts 3. Upon becoming aware of the offence, the plaintiff’s family liaised with An Garda Síochana. It was arranged that provided the plaintiff attended and completed a two year course in Our Lady’s Hospital for Sick Children, criminal proceedings would not be instituted. The plaintiff attended the course for eighteen months. However, upon gaining an insight into his actions and an appreciation of the gravity of the offence which he committed, the plaintiff found it difficult to cope and developed an addiction to heroin. As a result, the plaintiff was expelled from the course six months prior to its completion and charges were brought against him in relation to the incident. 4. On the 8th of March, 2004, when he was twenty years of age, the plaintiff pleaded guilty to rape contrary to section 4 of the Criminal Law (Rape) Amendment Act 1990 and was sentenced to thirty month’s imprisonment. Having been convicted of a sexual offence, the plaintiff became subject to certain mandatory reporting requirements under Part 2 of the Sex Offenders Act 2001 (“the Act”). In particular, having been sentenced to a term of imprisonment of two years or more, the plaintiff was subject to the notification requirements (set out below) in section 10 of the Act for an indefinite period by virtue of s 8(3)a of the Act. This requirement took effect, pursuant to section 8(3) of the Act from the “relevant date” which, in turn, is defined in section 6 of the Act as being the date of conviction, which in this case was the 8th of March, 2004. As stated above, he was sentenced to thirty months imprisonment on 8th March, 2004, and he was released on 4th January, 2006. 5. Section 9 of the Act requires prison authorities to notify, in writing, a person to whom Part 2 of the Act applies that he or she is subject to the requirements of Part 2 of the Act before the person is released from prison. 6. On 25th June, 2011, the plaintiff was sentenced to imprisonment for six months for offences unrelated to these proceedings. On 29th November, 2011, prior to his release from prison in connection with that offence, the plaintiff signed an acknowledgment that he had been advised of his obligations under Part 2 of the Act and specifically under section 10 of the Act, of his obligation to notify An Garda Siochana of his name, address and date of birth within seven days from the date of his release from prison, and further of any subsequent changes in his name or address within a period of seven days. The plaintiff, who gave evidence in the proceedings, confirmed that he was aware of his obligations to notify An Garda Síochana and that he had received notification of these obligations (and that he had signed the form of acknowledgment of receipt presented to the Court) prior to his release from prison. 7. The plaintiff was released from prison on 2nd December, 2011. He took up temporary residence in Judge Darley’s hostel, Dublin on 8th February, 2012. The Court was not told whether or not he had informed the authorities as to where he was between 2nd December, 2011 and 8th February, 2012. The plaintiff’s evidence as to what happened after he took up residence in Judge Darley’s hostel is confusing. On the one hand he appeared to say that he did notify Gardaí of his address; on the other hand he advanced excuses for not doing so. He stated that he was only made permanent in Judge Darley’s hostel on his sixth day there i.e. 14th February, 2012. He also indicated that at this time his girlfriend was pregnant, his parents were sick and he was on methadone treatment. This latter factor he said clouded his judgement around that time. In any case, on 23rd February, 2012 the plaintiff was charged with an offence under section 12 of the Act 2001 alleging that he had not complied with his notification obligations under Section 10 of the Act. Those proceedings have been adjourned pending the outcome of the plaintiff’s challenge to the constitutionality of the above mentioned provisions of the Act. The Court was informed that it is the intention of the DPP to prosecute the plaintiff on a summary basis, although the offence has been made indictable pursuant to section 13 of the Criminal Law (Human Trafficking) Act 2008. 8. The plaintiff has since spent the majority of his adult life in prison, with his offending linked to supporting his drug addiction. The plaintiff has not committed any other sexual offences. Legislation
(2) Subsection (1) is subject to section 11. (3) The period mentioned in subsection (1) is the period, beginning with the relevant date, of— (a) an indefinite duration if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for a term of more than 2 years, (b) 10 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of more than 6 months but not more than 2 years, (c) 7 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for a term of 6 months or less, or (d) 5 years if the sentence imposed on the person— (i) is one of imprisonment for any term, the operation of the whole of which is suspended (but, if the operation of that term is revived by the court, whichever of the preceding paragraphs is appropriate shall apply instead of this subparagraph), or (ii) is otherwise than one of imprisonment. (4) If— (a) a sentence is imposed on a person in respect of a sexual offence, and (b) at the time of sentencing the person is aged under 18 years, subsection (3) shall have effect in relation to that person as if for the references to 10 years, 7 years and 5 years in that subsection there were substituted references to 5 years, 3½ years and 2½ years, respectively…”
(a) his or her name and, where he or she also uses one or more other names, each of those names, and (b) his or her home address. (2) A person who is subject to those requirements shall also, before the end of the period of 7 days beginning with— (a) the person's using a name which is not the name, or one of the names, last previously notified by him or her to the Garda Síochána under this section, (b) any change of his or her home address, (c) the person's having resided or stayed, for a qualifying period, at any place in the State, the address of which has not been notified to the Garda Síochána under this section as being his or her current home address, or (d) the person's returning to an address in the State, having, immediately prior to such return, been outside the State for a continuous period of 7 days or more, Section 12 of the Act creates an offence for failure to comply with the reporting requirements:
(a) fails, without reasonable excuse, to comply with subsection (1), (2), (3) or (4) of section 10, or (b) notifies to the Garda Síochána, in purported compliance with that subsection (1), (2), (3) or (4), any information which he or she knows to be false or misleading in any respect, shall be guilty of an offence.” 12. The plaintiff seeks the following declarations in the proceedings:
(2) A declaration that section 11(2) of the Sex Offenders Act, 2001 is invalid having regard to Article 38 and/or Article 40 of Bunreacht na hÉireann; and (3) A declaration that section 12 of the Sex Offenders Act, 2001 is invalid having regard to Article 38 and/or Article 40 of Bunreacht na hÉireann; (4) A declaration that a child offender is entitled to a greater discretion in respect of the period of time to be imposed under the Sex Offenders Act, 2001; and (5) Damages pursuant to common-law and/or section 3(2) of the European Convention on Human Rights Act, 2003, for loss, damage, inconvenience and expense. 14. More particularly, it is pleaded that whilst section 8 of the Sex Offenders Act, 2001, does provide for a reduced period to be served in respect of persons who are under eighteen at the time of being sentenced, this does not apply to minors who receive sentences in excess of two years and nor does it apply to persons who, while under the age of eighteen at the time of the offence, were over eighteen at the time of conviction. Moreover, the provision for review and discharge of the period of notification only applies after ten years (from the date the period of notification takes effect) and there is no distinction drawn between those who committed the offence while under eighteen and those who where adults at the time of commission of the offence. In summary, it is claimed that the notification provisions as applicable to minors who commit offences to which the Act applies are disproportionate and are contrary to Articles 38 and 40 of Bunreacht na hÉireann (the Convention claim having been abandoned). 15. Neither the plenary summons nor the statement of claim indicate the right or rights which the plaintiff purports to invoke under Article 40 of Bunreacht na hÉireann. In a notice for particulars served by the defendants upon the solicitors for the plaintiff dated 23rd October, 2012, the plaintiff was asked to indicate the right or rights invoked by the plaintiff, and to indicate to which specific provision of Article 40 each right refers. In a reply delivered on behalf of the plaintiff, it is stated that the plaintiff relies on all of Articles 38 and 40 of Bunreacht na hÉireann as well as Article 6 of the Convention. The plaintiff further relies on all the rights guaranteed by Article 40, including the unenumerated rights guaranteed by Article 40(3) of Bunreacht na hÉireann. 16. Submissions 16. Ms. McDonagh SC for the plaintiff submits that section 8 of the Act of 2001 is unconstitutional insofar as it imposes reduced periods of reporting on persons who are minors at the time of conviction and sentencing, but contains no such provisions for persons who were minors at the time of the commission of the offence (and who were convicted following the attaining the age of majority). Furthermore, counsel for the plaintiff submits that there is no reduced reporting period at all (for minors) in respect of sentences greater than two years and that therefore a person who commits a sexual offence as a minor, which results in a sentence of more than two years, is effectively subject to the requirements of the Sex Offenders Act, 2001 for life. Counsel accepts that there is provision, in section 11 of the Act, for a review of and discharge of the reporting period after ten years. However, this period is the same for both child and adult offenders. Ms. McDonagh SC submits that for these reasons, sections 8 and 11 of the Act of 2001 are disproportionate and repugnant to Article 38 and Article 40 of the Constitution. 17. Counsel for the plaintiff further argued that since ection 8(4) of Act of 2001 makes specific provision for child offenders by providing for reduced reporting periods, of effectively half the time applicable to adults. Since that this makes it clear that child offenders are in a different category to adult offenders. However, it was submitted that the section does not strike a proportionate balance between the child’s right to fair procedures when weighed against the policy and aims of the legislation, because-:
2. There is no judicial or other discretion as to what length of period would be appropriate; 3. There is no distinction between the ages of such children; 4. There is no reduced period of reporting for sentences greater than two years imprisonment; 5. It applies for an indefinite period, subject to a review; and 6. Such a review can only take place after ten years. 18. Further, or in the alternative, counsel for the plaintiff submits that in respect of the reporting requirement, a period of indefinite duration, without any judicial discretion, or other mechanism of review is disproportionate to Articles 38 and 40 of the Constitution as well as being in violation of Article 6 of the European Convention on Human Rights. 19. Counsel for the plaintiff also argues that section 12 of the Act of 2001 is unconstitutional on the basis that the section creates an offence of strict liability. Ms. McDonagh SC submits that the offence created under section 12 does not require proof of intention of failure to comply with the requirements of the Act of 2001, and that such is unconstitutional by reason of the decision of the Supreme in C.C. v. Ireland [2006] 4 IR 1. She also submits that the offence created by section 12 of the Act of 2001 is impermissibly vague on the grounds that it imposes criminal liability on persons who, without “reasonable excuse,” fail to comply with the reporting requirements contained in the Act. Counsel for the plaintiff argues that the section is identical, in terms of its operation and vagueness, to section 12 of the Immigration Act, 2004 which was deemed unconstitutional in Dokie v. D.P.P [2011] I.R. 805. It is the contention of counsel that the term “satisfactory explanation” used in the impugned section 12 of the Immigration Act, 2004 is identical in its effect as the term “without reasonable excuse” as contained in the Sex Offender’s Act, 2001. On this basis, counsel for the plaintiff argues that a person cannot know from a reading of section 12 of the Act of 2001, what would or would not be considered a “reasonable excuse” and silence is equated with failure to provide a reasonable excuse, thereby becoming a proof of the offence, and also thereby offending the privilege against self incrimination. Counsel for the plaintiff also relies on Douglas v. D.P.P [2013] IEHC 343 in this regard. Submissions on behalf of the defendant. 20. By way of preliminary objection, counsel for the defendant, Ms. Barrington SC, submits that the plaintiff was not a minor when he was convicted and sentenced for a sexual offence. Accordingly, she submits that the plaintiff does not have the standing to challenge the Act on the grounds of being a minor, on the basis that he was not a minor when charged with and convicted of an offence under the Act or at the time he was subject to the notification requirements under Part 2 of the Act. Counsel for the defendant further argues that the plaintiff’s case is too vague to mount a constitutional challenge. Counsel for the defendant also submits that the plaintiff does not have locus standi to challenge the constitutionality of section 12 of the Act of 2001 on the basis that the plaintiff has not pleaded that he has been convicted of an offence under the section, nor has he set out whether he claims to have a “reasonable excuse” for failure to notify An Garda Síochana of his change of address. 21. Counsel for the defendant submits that the notification requirements under Part 2 of the Act of 2001 are not punitive in nature, in that they do not constitute a penalty, sanction or sentence and counsel relies on DPP v. Cawley [2003] 4 I.R. 321, Enright v. Ireland [2003] 2 I.R. 321 and P.H. v. Ireland and Others [2006] IEHC 40 in this regard. 22. The defendants deny that sections 8(3)(a) and 11(2) of the Sex Offenders Act, 2001 entail any interference with the plaintiff’s constitutional rights. However, if there is any interference with the rights, counsel submits that the interference is legitimate and proportionate. In particular, counsel for the defendants rely on the purpose of the 2001 Act, namely the protection of the constitutional rights of other citizens, and in particular, the dicta of Finlay Geoghegan J. in Enright (referred to in more detail below) to the effect that the Act of 2001 seeks to guard against the risk posed to society by the tendency of sexual offenders to relapse. It is submitted that the intent of the legislature is that sex offenders should be subjected to the minimal burden of notification requirements in order to protect the public and to assist in the rehabilitation of the offender. 23. It is also submitted that the absence of judicial discretion or other derogation in respect of child offenders is proportionate and in keeping with the Constitution. Counsel for the defendant submits that the notification requirements not only pursue a legitimate aim, but are also proportionate in that the benefits to the common good and the public interest in the notification regime, outweigh the relatively minor inconvenience which the regime imposes on the offender. In addition, counsel points to the mechanism for review contained in s 11(2) of the Act of 2001. 24. Counsel for the defendant also submits that section 12 of the Act of 2001 does not create an offence of absolute or strict liability. In so far as the issue of mens rea arises, it is submitted that the plaintiff was manifestly aware of his notification obligations under section 10 of the Act of 2001 and therefore it follows that he had mens rea in his failure to notify An Garda Síochana of his change of address. Furthermore, it is submitted that the accused is afforded an opportunity to contradict the evidence and to demonstrate that he had a reasonable excuse for his failure to notify An Garda Síochana of his change of address, and that this is sufficient to negative the potential of absolute liability. 25. Finally, counsel for the defendant submits that the offence contained in section 12 of the Act of 2001 is clear and unambiguous and that the plaintiff in this instance was fully aware of the obligations to which he was subject. In addition, Ms. Barrington SC submits that the concept of “reasonable excuse” does not undermine the clarity or precision of the offence contained in section 12 of the Act and that the section is not similar in effect to section 12 of the Immigration Act, 2004 which was struck down in Dokie. Relevant Case Law
(ii) do they impair the plaintiff’s constitutional rights as little as possible? and (iii) are they such that their effect on the plaintiff’s constitutional rights are proportional to the objectives sought to be obtained by the Act?”
The Oireachtas made a choice, and such a legislative decision reflects a social policy on the issue. While the legislator could have enacted another social policy, it was an approach the legislator was entitled to take, it was an issue in society to which the legislator had to respond.” 33. Counsel for the plaintiff also refers to the decision of B.F. v. DPP [2001] 1 IR 656. In that case the appellant was fourteen at the time in 1995 when it was alleged he committed certain offences of a sexual nature. The appellant subsequently moved with his family to live in England, and in February 1998 he was arrested for the purpose of having him extradited to Ireland. He sought an order preventing the respondent from proceeding with his prosecution on the grounds that he had been prejudiced by the excessive delay in the making of the extradition arrangements. In allowing the appeal, Geoghegan J. said:
35. In the case of Dokie v. DPP [2011] 1 I.R. 805 the compatibility of section 12 of the Immigration Act, 2004 with articles 38 and 40 of the Constitution was challenged. Section 12 of the Immigration Act 2004 provided:
(a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and (b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate. (2) A non-national who contravenes this section shall be guilty of an offence.”
(ii) the section was a disproportionate interference with the equality provisions in the Constitution.
38. In giving judgment he compared the 2004 Act to the equivalent legislation in the United Kingdom as follows:
“A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which - (a) is in force, and (b) satisfactorily establishes his identify and nationalisation or citizenship. Section 2(4) then specifically provides as follows:- “It is a defence for a person charged with an offence under subsection (1) … (c) to prove that he has a reasonable excuse for not being in possession of a document of the kind described in subsection (1)”. The learned judge also noted that there was no requirement (in the Irish legislation) to a warn of the possible consequences of any failure to provide a “satisfactory” explanation. 39. In the case of Donnelly v. The judges of Dublin Metropolitan District Court, and ors [2015] IEHC 125, the applicant sought a declaration that section 9(6) of the Firearms and Offensive Weapons Act 1990 were invalid having regard to articles 38.1 and 40.4.1 of the Constitution. Section 9 of that Act provides, insofar as is relevant:
(6) in a prosecution for an offence under subsection (5), it shall not be necessary for the prosecution to allege or prove that the intent to cause injury, incapacitate or intimidate was intent to cause injury to, incapacitate or intimidate a particular person; and if, having regard to all the circumstances (including the type of the article alleged to have been intended to cause injury, incapacitate or intimidate, the time of the day or night, and the place), the court (or the jury as the case may be) thinks it reasonable to do so, it may regard possession of the article as sufficient evidence of intent in the absence of any adequate explanation by the accused.”
(a) the necessity to establish whether the means it employs to achieve its aim corresponds to the importance of the aim; (b) whether the means adopted are necessary for the achievement of the objective; (c) whether the means actually becomes the end in itself; (d) whether the objective can be obtained by other methods which may be more conveniently applied; (e) whether the method chosen is the least restrictive and the disadvantage caused is least disproportionate to the aim; (f) whether the means may be rationally connected to the objective and not be arbitratory, unfair or based on irrational consideration.”
45. The case of King v. Attorney General [1981] 1 I.R. 233 confirmed the need for legislation creating criminal offences to be clear and certain in their scope. More recently, in the case of Douglas v. DPP [2013] IEHC 343 Hogan J. found that the offences of causing scandal or injuring the morals of the community created by the Criminal Law (Amendment) Act 1935 were “totally unclear”. He noted that the term “scandal” is highly subjective in its application and meaning and that the reference to “morals of the community” is equally unclear. Accordingly he found the impugned provisions of that Act unconstitutional. 46. The term “reasonable excuse” was subjected to scrutiny in the case of R v.G; R v. J [2010] 1 AC 43 in the context of section 58 of the Terrorism Act 2000 in the United Kingdom. In the course of the judgment Lord Rodger of the House of Lords stated:
48. Cahill v. Sutton [1980] I.R. 269 affirmed the proposition that, in order to maintain a constitutional challenge, the rights of the plaintiffs should either be infringed or threatened. Henchy J. stated:
Analysis and Conclusions 51. The plaintiff’s challenge to sections 8 and 11 of the Act revolves around the fact that the plaintiff was just thirteen years of age when he committed the offence that gave rise to the application of Part 2 of the Act. While acknowledging that it is within the remit of the Oireachtas to determine the social policy, and that challenges to date have upheld the proportionality of Part 2 of the Act insofar as it impinges upon the constitutional rights of adults, it is the plaintiff’s contention that the provisions of Part 2 of the Act are disproportionate insofar as they apply to persons who were under the age of eighteen years at the time of commission of the offence; but over 18 years at the time of sentencing and that while as Part 2 does impose lesser notification requirements on those who were under the age of eighteen years at the time of sentencing, it is disproportionate in its effect in relation to offences giving rise to a sentence greater than two years because it imposes a life long notification requirement upon the offender, subject only to a review after ten years. The defendants contend however, that since the plaintiff was over the age of eighteen years both when he was convicted and sentenced for the offence, he cannot avail of these arguments and he is therefore not entitled to challenge the validity of sections 8 and 11 of the Act on these grounds. In response to this, it was submitted on behalf of the plaintiff that he does have locus standi because the plaintiff has already been subjected to the notification requirement for an indefinite period, and he has an ongoing interest in the validity of the section in the event of a future review; and further that he has already been subject to the negative consequence of the section. 52. At the outset of consideration of this issue, it needs to be borne in mind that the plaintiff will be entitled to have the notification requirements reviewed in accordance with section 11 (1) at any time from 4th January, 2016 i.e. ten years from the date of his release from prison. One of the arguments set forth on behalf of the plaintiff is that, where minors are concerned, the imposition of the notification requirements under the Act for an indefinite period (even subject to review after ten years) is disproportionate both in permitting of an indefinite period of notification in the first place, and secondly in failing to permit of a review earlier than ten years from date of release from prison. If this argument were successful, this could lead to a declaration that sections 8(3)(a) and 8(4) of the Act are invalid having regard to the provisions of article 40.3 of the Constitution. If that were to occur, that must result in the proceedings issued against the plaintiff for an offence under section 12 of the Act being struck out on the grounds that the plaintiff could not be guilty of an offence under section 12 if the prosecutor can no longer establish that the plaintiff was subject to the notification requirements set out in part 2 of the Act. Moreover, as matters stand, the plaintiff is still subject to the notification requirements of the Act and will not be eligible to make application under section 11 of the Act for approximately another six months from the date of this decision, but, more relevantly, would not have been entitled to do so for a period of three years and ten months from the date on which the proceedings were issued (15th March, 2012). For these reasons I believe that the plaintiff has established that the impugned provisions are operating and are also poised to operate in such a way as to deprive him personally of the benefit of a particular constitutional right.. Proportionality of Section 8 54. In this particular case, it may well appear that the application of the Act to the plaintiff is particularly harsh, in view of the fact that he was not brought to trial for a period of more than six years from the date of the offence. However, eighteen months of that period is accounted for by the programme embarked upon by the plaintiff in Our Lady’s Hospital for Sick Children which, had he completed the programme, would have resulted in no prosecution against him. There was clearly a significant delay in bringing the plaintiff to trial thereafter, and this was not explained to the Court, but in any case that delay was a matter to be addressed at the time. Even if the Oireachtas did not contemplate the possibility that a person would be so young at the time of commission of an offence, and that it would take so long to secure a conviction in relation to the same offence, these are not in my view grounds for the Court to set aside sections 8 or 11 because to do so would amount to no more than the Court saying that it disagreed with the policy set by the Oireachtas rather than a determination of some manifest and objective disproportionally in those sections. For those reasons in my view the provisions of Part 2 of the Act, as they apply to minors, meet the test posed by Costello J in Heaney v. Ireland and McMenamin J. in McNally and for the same reasons set out by Finlay Geoghegan J. in Enright. Section 12 - Strict Liability or Reverse Onus Offence?
58. Counsel for the respondent however argues that the offence is not one of strict liability because:-
2. It is also necessary for the prosecutor to prove actual non compliance with the provisions of Part 2 and 3. Further, section 12(3) puts in place a constitutionally permissible “reverse onus” the constitutionality of which has been repeatedly upheld in The People (DPP) v. Smyth [2010] 3 IR 688 and The People (DPP) v. PJ Carey [2012] 1 IR 234.
61. While it has been argued that the manner in which section 12 is structured means that the words “without reasonable excuse” constitute an ingredient of the offence, in practical terms they really operate as a defence. Where an accused person elects to tender an excuse to An Garda Síochána, the DPP may consider the excuse to be reasonable in which case no proceedings will issue; alternatively the DPP may prosecute in which event the Court (or the jury, as the case may be) will consider whether or not the excuse is reasonable, and at that point the excuse operates as a defence. The onus will shift to the accused to satisfy the judge, in a summary prosecution, or the jury, in the case of prosecution an indictment that the excuse was reasonable. 62. There can be no doubt therefore that the offence could not be construed as one of strict liability because, in the first place, in order to succeed with a prosecution the prosecutor would not only have to prove a failure by the accused to comply with his obligations under Part 2 of the Act, but she or he must also prove that the accused was informed of his or her obligations under the Act, and secondly the accused is afforded the opportunity to explain why he or she did not comply with his or her obligations under Part 2 of the Act. 63. Of course it is possible that a person to whom Part 2 of the Act applies might not give any excuse at all and to that extent it may be argued that the section offends the principle against self incrimination. While that point was not expressly argued in this case, it seems to me to follow that this is permissible where the legislation concerned legitimately imposes a reverse burden of proof upon an accused, as was the case in Donnelly. Here also, in my view, the burden of proof imposed on the accused is evidential and not legal in nature, and so the privilege against self-incrimination is not offended. 64. Insofar as the wording of the section has been criticized for creating an offence using impermissibly vague language, I do not agree with this submission for a number of reasons. Firstly the concept of reasonableness is an objective one and is one that is known to law. See Jobe v. United Kingdom at paragraphs 47 above. 65. In Dokie Kearns P. considered that legislation in the United Kingdom which created a similar offence to that created by section 12 of The Immigration Act, 2004, was more satisfactory because it provided that it is a defence for a person charged with an offence under the equivalent subsection in UK legislation to prove that he has a reasonable excuse. While there is not a separate subsection providing the defence in this instance, Kearns P. in Dokie commented that “it is also noteworthy that under this British measure the defendant need only to produce an explanation which is “reasonable” and thus susceptible to evaluation by an objective standard. The Court considered in Dokie that the term “satisfactory” was “not sufficiently precise to reasonable enable an individual to foresee the circumstances of his or her acts or omissions or to anticipate what form of explanation might suffice to avoid prosecution”. In contrast, the concept of a reasonable excuse is accepted as being an objective standard, susceptible to application by a judge sitting alone, or to the giving of guidance by a judge to a jury. 66. Also in Dokie there was no requirement contained in section 12 of The Immigration Act, 2004, to warn of the possible consequences of any failure to provide a “satisfactory” explanation for not producing the documents required by the section. Section 9 of the Act imposes a statutory obligation on the prison authorities to notify a person to whom Part 2 of the Act applies, prior to his or her release from imprisonment, that he or she is subject to the requirements of Part 2 of the Act, and the plaintiff confirmed that he received that notification in this instance. 67. So therefore, while at first glance section 12 may be very similar to the provisions struck down in Dokie, there are material differences between the impugned provisions in each case. 68. For these reasons, I dismiss the proceedings. Counsel for the plaintiff: Ms. McDonagh SC, instructed by Kelleher O’Doherty Solicitors. Counsel for the defendant: Ms. Barrington SC, instructed by Eileen Creedon Solicitors. |