Section 26 and section 26A of the Criminal Justice Act 2007 seem to have gone largely unnoticed, which is hardly surprising given the volume of changes to criminal law, sentencing and procedure introduced by the 2007 Act and the Amendment Act of 2009.
These sections introduce ‘post-release orders’ or civil orders placing some requirements or restrictions which take effect after a person has been released from a sentence of imprisonment. Given the significant changes involved both philosophically and practically as a result of this legislation, it is somewhat strange that there hasn’t been more attention paid to them. However, as was pointed out at the conference, this kind of legislation may be a political tool rather than something which becomes used in practice regularly. This doesn’t alleviate my concerns greatly, as once legislation is in place it can, of course, be used and, furthermore, there are fewer objections to introducing other similar orders in other areas.
As I write about further elsewhere, section 26 introduces two types of orders which take effect after a person is released from prison. These are the monitoring order and the protection of persons order. The first requires a person to notify an Inspector of the Gardaí of his/her address and any changes of address for a period of up to seven years. The second, the protection of persons order, prohibits a person from engaging in behaviour likely to cause fear, alarm or distress or intimidation towards a person named in the order (a bit like an ASBO). Breach of these orders is a criminal offence.
In 2009, a new, similar kind of order was introduced, called the “restriction on certain activities” order. This prevents a person from engaging in named activities, visiting certain places etc. Again, breach of the order is an offence.
These orders can apply for a period of up to 7 years.
These orders apply to serious offences. However, in my view they should be reconsidered and revisited. First, they act as a further hurdle to reintegration for those making the transition back to the community, placing further restrictions on activities and potentially disrupting community links, family ties and employment opportunities. Similarly, they are unlikely to be more effective than existing and traditional criminal laws preventing any such behaviour after release. Moreover, they represent a view that there is no such thing as an ex-offender – that all those subject to imprisonment are incapable of change and must be kept within the reach of the criminal justice system. Finally, they represent an erosion of the principle that when a person serves a sentence that person has the presumption of innocence restored.
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More on prisons in the news today as the Chaplains condemn the prison system in their report.
Read more here.