Sex offenders orders

Rules

Who can obtain a sex offenders order?

A member of the Gardaí (not below the rank of Chief Superintendent) may apply to the Circuit Court for an order against any sex offender whose behaviour in the community gives the Gardaí reasonable cause for concern and is necessary to protect the public from serious harm. Two criteria must be satisfied before an application for an order can be made. They are:

• The offender must have been convicted of certain sexual offence(s) set out in the Sex Offenders Act 2001.
• The offender must act, following release from prison, in such a way as to give the court reasonable grounds for believing that the public must be protected from serious harm. The term serious harm means death or serious personal injury (whether physical or psychological) which would result if the offender were to commit a sexual offence.

What does a sex offenders order do?

An order can prohibit a sex offender from doing certain things. The terms of each individual sex offenders order largely depend on the evidence given to the court by the Chief Superintendent.

If, for example, the Gardaí apply for a sex offenders order to the court, as they are concerned that a sex offender is loitering in the vicinity of a school playground, then the court could include a condition in the order to prevent the offender from going within a certain distance of school playgrounds. Similarly, the court could order a sex offender to refrain from attending night-clubs if evidence given by the Gardaí gave reasonable cause for concern that the public would be in serious danger if the sex offender attended the night-club.

As sex offenders orders are applied for by the Gardaí, it is for the Gardaí to ensure the offender complies with the order. There is no duty placed on the sex offender other than to comply with the terms of the order. This means for example, the sex offender is not required to report to the local Garda station during the period for which the order is in force.

When does the order take effect?

An order takes effect when it is notified to the sex offender. It may be notified in either of the following ways:

• The sex offender, or a representative, is told verbally that an order has been made, together with production of a copy of the order
• If the sex offender is present in court when the Order is made the offender is deemed to have been notified.

How long does a sex offender order last?

A sex offender order remains in force until the end of:

• Five years from the date the offender has been notified or

• Any longer period the court decides is appropriate

If a sex offender successfully appeals the order to the Circuit Court and the court discharges the order, then it is no longer in force.

It is possible for the Gardaí to apply to the Circuit Court for a variation (or change) on the original order. This normally occurs when the Gardaí are of the view that the sex offender’s behaviour has given rise to a further cause for concern and the behaviour hasn’t been addressed by the court or brought to the court’s attention when issuing the original order. This process ensures that one order exists against a sex offender and it can be varied if needs be.

Failure to comply with a sex offender order

Any breach of the terms of a sex offenders order is an arrestable offence as set out in the Criminal Law Act 1997. This means that the Gardaí have the power to arrest a sex offender without an arrest warrant or without having to get permission from the courts where the Gardaí have reasonable grounds for believing that the person is not complying with the terms of the sex offenders order.

Anyone found guilty of breaching a sex offender order may be fined or imprisoned for up to five years (or both).

Appealing a sex offender order

The Sex Offenders Act 2001 allows someone who is subject to a sex offenders order to apply to court to make a change to the order, or to have the order cancelled.

The Court has the power to vary or cancel the order if the court is satisfied that:

• The protection of the public from serious harm from the sex offender doesn’t require the order to continue in force
• The order is causing an injustice by being in effect

Situations where a court may vary an order might include where an order prevents a sex offender from approaching school grounds and the sex offender applies for permission to attend a teacher/parent meeting at the school regarding his/her child. In such an instance the court may look favourably on a variation on the order for that date.

A court may, similarly, be agreeable to discharge an order against a sex offender if evidence is given by the psychologist who counselled the offender that the offender no longer poses a danger to society.

Applications to vary or cancel sex offender orders are made to the Circuit Court in whose area the offender resides or by the Circuit Court in whose area the offenders is alleged to have acted in such a way as to give rise to the order being made.

In hearing applications for making, varying or cancelling sex offenders order, the Circuit Court acts in its civil capacity and the civil standard of proof applies. That is, the court comes to a decision on the application on the balance of probabilities, as distinct to the criminal standard of proof which is beyond reasonable doubt.

Sex offenders who are involved in sex offender order proceedings are entitled to free legal aid once they fit the criteria laid down for free legal aid.

Can I find out if a sex offender order is in force in respect of someone else?

No. The Sex Offenders Act 2001 specifically says that any proceedings in relation to a sex offender order shall be heard otherwise than in public. This means the in camera rule applies and the public are not allowed attend such court proceedings.

Similarly any details held by the Gardaí in relation to sex offenders orders are not subject to Freedom of Information legislation. Therefore you are not entitled to apply under the Freedom of Information Acts 1997-2003 to find out if a sex offenders order is in force in respect of someone in your area.

The provisions of the Data Protection Acts 1998-2003 only allow you to request information being held about yourself on computer or in manual or paper files. It is not possible to make a data protection request in respect of another person.