Analyzing the Criminalization of Sex Purchasers and the Provision of Immunity in Ireland

Witness Protection Program

The Witness Protection Program was established in 1997 in the aftermath of the murder of Veronica Guerin. It has been subject to a vigorous criticism in recent times and a number of proposals have been made to review it. The majority of those who have entered the program have left everything behind, including their identities. In most cases, those in the program have emerged from criminality themselves and used it to avoid imprisonment and as a protection from serious threats by gang members after testifying as a witness in the criminal proceedings against them.

There are no reports produced to date in relation to the operation of the program and its effectiveness, but these issues are outside the scope of the research. What is important to note is that it operates on a non-statutory basis. However, it is supported by complimentary legislative provisions in Section 40 of the Criminal Justice Act 1999. This section makes it an offense for any person, without lawful authority, to attempt to identify the location or a new identity of a witness which has been relocated under the program. The use of this program for a suspected victim or a witness in a human trafficking case is an operational matter for the Garda Síochána.

Purchasers of sex will not fear imprisonment due to the different nature of penalty (fine) and would hardly be willing to be stripped of their identity and relocated abroad, but since prostitution is an organized crime, it can be argued that there may be an unwillingness to provide any information due to fear for personal safety by purchasers in providing intelligence to Gardaí. To conclude, the Witness Protection Program as it operates at present cannot be extended to the purchasers of sex, but a modified program which would tailor the particular needs of the witness could be implemented as a policy.

Cartel Immunity Program

Another available program is the Cartel Immunity Program, which came into effect on 20th of December 2001. Irish Competition law allows immunity from prosecution for criminal offenses under the Competition Act 2002 to be granted to whistleblowers. Cartels are by their very nature conspiratorial. The participants are secretive and hard-core cartels are notoriously difficult to detect and prosecute successfully. This program encourages self-reporting of unlawful cartels by offenders, who are insiders, but not main leaders in the organization, at the earliest possible stage. It operates with the consent of the Director of Public Prosecutions. Whether or not an individual should be granted immunity is a matter which must be referred by the Garda Síochána to the DPP’s office for advice and, where appropriate, for directions.14 The Program is designed for individuals who are not under investigation yet or have not been charged. The Authority will recommend immunity to the DPP only if the applicant is the first to come forward before the Authority and sufficient evidence is gathered to warrant a referral of a completed investigation file to the DPP. Among other requirements, the applicant must not have coerced another party to participate in the illegal activity and must not have acted as the instigator or have played the lead role in the illegal activity. Under this program, a failure to provide accurate and truthful information can result in the withdrawal of immunity and extra penalties.

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A similar leniency program in relation to cartels exists in Belgium. The Act on the Protection of Economic Competition, consolidated on the 15th of September 2006, contains a cartel prohibition. The Competition Council, as Belgian Competition Authority, is of the opinion that it is in the general interest to provide leniency to undertakings and associations of undertakings which cooperate with the Belgian Competition Authority. The detection and prohibition of cartels is of a greater importance to consumers and citizens than the fining of the undertakings and associations of undertakings which enabled the Belgian Competition Authority to prosecute and sanction these generally secret practices. The legislator has provided in Article 49 of the Act for a specific legal basis for a Belgian leniency program in cartel cases. It provides for a total immunity from fines or a reduction of fines in exchange for information, subject to a number of requirements, which are similar to those under the Irish Cartel program.15 The granting of immunity from fines or reduction of fines to undertakings or associations of undertakings does not protect them against other consequences of their participation in the cartel.

Conclusion

Provision of immunity or reduction of fines for purchasers of sex should not be viewed as a sign that the Government or other institutions take a lax approach to the matter and do not recognize the seriousness of the offense. To the contrary, the main reason behind the immunity is to obtain sufficient intelligence in order to prosecute the organizers of prostitution (pimps). Of course there are other methods available to Gardaí (surveillance, undercover etc.), but it is the combination of all which may lead to successful prosecutions.

As observed from the programs available in Ireland and Belgium, the provision of immunity or leniency can be policy based. The structure of existing programs in Ireland can be tailored to the offense and incorporate elements of both. Because it is a summary offense, the file will not be sent to the DPP and, therefore, it can be a policy based program operated by an Garda Síochána. Similar to the assessment under the Witness Protection Program, Gardaí should have a risk assessment of the applicant (purchaser of sex) to evaluate his or her exposure to the risks from providing information to facilitate an adequate protection of a person and his or her identity following the grant of immunity.

The immunity can be full or partial, depending on whether it was voluntary and prompt cooperation and also upon the importance of the information provided. The type of immunity shall be clearly identified in the agreement between the parties. Provision of false or misleading information should result in the withdrawal of immunity, similar to provisions under the Cartel Immunity Program and an imposition of extra penalties, including publication, which can be provided for in the legislation or apply as a policy.

Despite a growing demand for sexual services and willingness by the Irish purchaser to pay rates in excess of European rates, combined with substantial lack of resources to investigate highly-secretive organized crime of prostitution and human trafficking, a little step forward made by the Government in criminalizing purchasers of sex will undoubtedly become one further obstacle for those who coordinate the business and, who knows, it may be the last underwater stone needed in order to turn the stream in the different direction away from Ireland. The research conducted in those countries where the offenses have been enacted enacted, shows very positive results and is worthy of consideration in Ireland.

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Endnotes

1.) Ministry of Industry, Employment and Communications, Division of Gender Equality, January 2004 Report

2.) Maria Jacobson, “Why Do Men Buy Sex?” (2002) 1 NIKK < www.nikk.no/filestore/Publikasjoner/NIKK_magasin/mag20021.pdf> accessed 10 June 2012

3.) Maria Jacobson, “Why Do Men Buy Sex?” (2002) 1 NIKK < www.nikk.no/filestore/Publikasjoner/NIKK_magasin/mag20021.pdf> accessed 10 June 2012

4.) Kajsa Wahlberg and Camilla Orndahl, National Criminal Intelligence Service, National Criminal Investigation Department, Sweden, “Situation Report 5: Trafficking in Women,” December 31, 2002

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5.) Thomas O’Malley, Sentencing: Towards a Coherent System (Round Hall 2011) 42

6.) Misuse of Drugs Act 1977, s 27 (3)(C)(a)(ii)

7.) Kiwana Ennis, “Mandatory Minimum Sentences in S. 15A Drug Cases” (2003) 8(1) Bar Review, 30-35 at 30

8.) Ibid at 35

9.) People (DPP) v Renald (CCA, 23 November 2001)

10.) People (DPP) v Duffy (CCA, 21 December 2001)

11.) People (DPP) v Hogarty (CCA, 21 December 2001)

12.) Ex tempore, CCA, 14 January 2002

13.) Ex tempore, CCA, 10 October 2002

14.) Office of the DPP, Guidelines for Prosecutors < http://www.dppireland.ie/filestore/documents/GUIDELINES_-_Revised_NOV_2010_eng.pdf >

15.) Belgian Competition Authority <http://economie.fgov.be/en/entreprises/competition/Restrictive_Practices/Leniency_Program/#Immunity_from_fines