A man has lost his High Court challenge to the law requiring sex offenders to notify change of address to gardaí. The man (31) had pleaded guilty in 2004 to an offence of rape which happened in 1997 when the man was aged 13. The victim was his younger nephew.
The man was sentenced to 30 months imprisonment and was released in January 2006. By 2012, having developed a drug addiction and after serving another six-month sentence for other offences, the man took up residence in a hostel but was later charged with failing to notify gardaí of a change of address in accordance with the Sex Offender Act 2001.
He brought a High Court challenge claiming various provisions of the Act breached his rights under the Constitution to a fair trial and equality before the law (Articles 38 and 40). He also sought declarations and damages over an alleged breach of his rights to liberty and security under the European Convention on Human Rights (ECHR) Act 2003.
It was argued on his behalf that both the Constitution and the ECHR provided that child offenders be treated more favourably than their adult counterparts. It was also claimed a fundamental requirement of the right to trial in due course of law, and the protection of the rights of a minor, was that they were not subject to arbitrary rules and/or mandatory sentences and/or punishments imposed on adults.
Requiring those who committed offences while aged under 18 to abide by the same requirements to notify gardaí as those required by adults was disproportionate, it was claimed. If the charges were dealt with in the Circuit Court, he could face a maximum penalty of five years imprisonment and/or a €10,000 fine.
Ireland and the Attorney General opposed the application while the DPP and the Irish Human Rights Commission were notice parties to the proceedings.
Dismissing the case, Mr Justice Donald Binchy said section 12 of the 2001 Act made it an offence to fail to notify change of address if that failure was "without reasonable excuse". The onus was on the accused to provide a reasonable excuse and the Act, in practical terms, really operated as a defence, he said.
Where an accused elected to give an excuse to the Garda for failing the do so, the DPP may consider the excuse to be reasonable, in which case no proceedings would issue, the judge said. If proceedings were issues, the onus shifted to the accused to satisfy a trial judge that the excuse was reasonable.
In the circumstances, this could not be construed as a strict liability offence, he added . He also rejected arguments the wording of the relevant provisions of the Act was impermissibly vague.