Allen v The Governor of St Patrick's Institution
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Gcoghegan |
| Judgment Date | 05 December 2012 |
| Neutral Citation | [2012] IEHC 517 |
| Court | High Court |
| Date | 05 December 2012 |
[2012] IEHC 517
THE HIGH COURT
BETWEEN
AND
CONSTITUTION ART 40.4.2
ROAD TRAFFIC ACT 1961 S112
CONSTITUTION ART 40
CHILDREN ACT 2001 S99
CHILDREN ACT 2001 S99(4)
CHILDREN ACT 2001 S99(1)(B)
T (S) (A MINOR) v DISTRICT JUDGE ANDERSON UNREP DUNNE 10.2.2012 2012 IEHC 287
CONSTITUTION ART 40.4.1
MCDONAGH, STATE v FRAWLEY 1978 IR 131
BRENNAN & ORS v GOVERNOR OF PORTLAOISE PRISON 2008 3 IR 364
A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88
COURTS OF JUSTICE ACT 1924 S29
JURIES ACT 1927
DE BURCA & ANDERSON v AG 1976 IR 38
CRIMINAL LAW AMENDMENT ACT 1935 S1(1)
C (C) v IRELAND & ORS 2006 4 IR 1
CONSTITUTION ART 50.1
BYRNE, STATE v FRAWLEY 1978 IR 326
BRENNAN & ORS v GOVERNOR OF PORTLAOISE PRISON 2008 3 IR 364
CONSTITUTION ART 40.4
O'BRIEN v SPECIAL CRIMINAL COURT & DPP 2008 4 IR 514 2008 1 ILRM 510 2007/45/9603 2007 IESC 45
CHILDREN ACT 2001 S143(1)
CHILDREN ACT 2001 S143
CAFFREY v GOVERNOR OF PORTLAOISE PRISON 2012 2 ILRM 88 2012 IESC 4
CONSTITUTIONAL LAW
Habeas corpus
Custodial sentence - Child - Probation report - Detention - Failure to object to sentencing court - Whether sentencing court had discretion not to request probation report prior to imposition of sanction of detention - Whether child acquiesced to imposition of sanction of detention in absence of probation report - T(S) (A Minor) v District Judge Anderson [2012] IEHC 287, (Unrep, Dunne J, 10/2/2012); The State (McDonagh) v Frawley [1978] IR 131; The State (Byrne) v Frawley [1978] IR 326; Brennan v Governor of Portlaoise Prison [2008] IESC 12, [2008] 3 IR 364; A v Governor or Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 and Caffrey v The Governor of Portlaoise Prison [2012] IESC 4, [2012] 1 IR 637 considered - Children Act 2001 (No 24), ss 96, 99 and 143 - Constitution of Ireland 1937, Art 40.4.1 - Release ordered (2012/2219SS - Finlay Geoghegan J - 5/12/2012) [2012] IEHC 517
Allen v Governor of St Patrick's Institution
Facts: The applicant appeared in Limerick Children's Court on the 6th November 2012 and pleaded guilty to a number of offences relating to burglary and s. 112 of the Road Traffic Acts. He was two days short of his 18th birthday at the time and had been diagnosed with ADHD, ASD and ODD. The Garda Sergeant who was present on the 6th of November gave evidence in these proceedings to the effect that following the applicant's refusal to cooperate with probation service if a pre-sanction report was ordered, the District Judge sentenced the applicant to four months detention.
The applicant's mother was contacted on the 20th November by a probation officer working at St Patrick's institution who stated she felt that the applicant's detention without a probation report being ordered was unlawful. An application was subsequently made pursuant to Article 40 of the Constitution that the District Judge's actions were in breach of s. 99 of the Children Act 2001. Specifically attention was drawn to s. 99(1)(b) which it was submitted imposed a mandatory obligation on a District Judge to order a probation report where detention of the child was being considered. It was not suggested by the respondent that the applicant's case fell under any of the s. 99 exceptions but that the applicant's intention not to engage with the service would have defeated its purpose and was therefore unnecessary. It was further alleged that the applicant had lost his right to object to a probation report not being ordered as he failed to request one at the relevant time.
In response, the applicant claimed that whilst it was accepted the District Judge had intended to order a report and was then convinced otherwise, a District Judge can not be legally dissuaded from a mandatory obligation especially in light of the fact that the aim of the legislation is to protect the child including the applicant who was especially vulnerable given him psychiatric condition. The District Judge therefore had no jurisdiction to order detention.
Held by Finlay Geoghegan J, that the obligation under s. 99 of the Children Act 2001 was indeed mandatory and that the District Judge could not impose a period of detention in the absence of a probation report. The respondent's submission could not mitigate this duty as there was no discretion available to the court save for the proposed exceptions which were not relevant to the applicant.
In relation to the applicant having lost his right to challenge the detention, it was held that there had to be clear evidence that the applicant had "freely and knowingly" decided not to object to the detention period without requesting a probation report. It appeared that this was not the case as it appeared that the indication that the applicant would refuse to cooperate with the probation service was made before the detention was ordered.
Applicant's release from detention directed under Article 40.4.2 of the Irish Constitution
1. On 23 rd November, 2012, the President, on the application of the applicant grounded on an affidavit of his mother, Katrina Allen and John Birmingham, solicitor, made an order pursuant to Article 40.4.2 that the respondent produce the applicant before the Court at 3.00pm on that day and certify in writing the grounds of his detention. As the parties were not ready to proceed at that time, the matter came before me later that day as the weekend duty judge.
2. The Assistant Governor of St. Patrick's Institution certified that the applicant was held pursuant to four warrants of execution issued in Limerick District Court on 6 th November, 2012. Each warrant records that the applicant was convicted of an identified offence and ordered to be detained for a period of four months.
3. The respondent sought time to put evidence before the Court from the Garda Sergeant who had been present in Limerick District Court when the applicant was sentenced on 6 th November, 2012. For practical reasons, that could not be done until the afternoon of Monday 26 th November, 2012. On the evening of 23 rd November, 2012, I released the applicant on bail on the same terms and conditions as had applied to the bail granted to him in the District Court prior to conviction and sentence and on his undertaking to return to the High Court at 3.00pm on Monday 26 th November, 2012. The applicant returned to Court as he had undertaken.
4. The respondent filed an affidavit from Sergeant Dóonal Cronin. The hearing of the inquiry was on the basis of the facts set out in the affidavits of Mrs. Allen, Mr. Birmingham and Sergeant Cronin. Whilst there were small differences in the accounts given by Mrs. Allen and Sergeant Cronin of what took place before the District judge, they were, in my judgment, differences of emphasis rather than any real dispute of fact. The facts may be summarised as follows.
5. The applicant was born on 8 th November, 1994. He appeared in the Children's Court of Limerick District Court on 6 th November, 2012, charged with a number of offences relating to burglary and s. 112 of the Road Traffic Acts. He was two days short of his 18 th birthday. The applicant was represented by a person described as an experienced solicitor in relation to criminal matters and entered pleas of guilty in respect of all charges and evidence was heard by the District Court judge in relation to each charge.
6. A copy of a letter dated 19 th February, 2010, from Dr. Eithne Foley and Dr. Naomi Kissane, consultant child and adolescent psychiatrists, was handed into the District Court judge. This stated, inter alia:
"Robert has been open to the Child and Adolescent Mental Health Services (CAMHS) since May 2006. He has a diagnosis of an Autistic Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD), very poor social and verbal skills, poor coordination, possibly sensory to processing difficulties and depressed mood. He is currently receiving Fluoxetine 40 mg daily,Abilify 10 mg daily, Concerta 72 mg daily and Strattera 40 mg daily. It would appear that as Robert has got older the features of his Autistic Spectrum are becoming more apparent and causing more difficulties. Robert is demonstrating significant anxiety in new situations and this is very distressing for him. He is finding it very difficult to cope with it. Robert is an extremely concrete thinker and his concrete interpretation of language is causing a lot of difficulties for him. He is very poor to read social situations and this again is causing more and more difficulties as he goes through his adolescent years as the demand for social interaction increases. Robert would appear to have sensory processing difficulties he is hyper-sensitive to any sort of touch and recently hit a young man and broke his wrist because the young man had pushed up against him."
7. Sergeant Cronin recalls that the District Court judge heard a plea of mitigation on behalf of the applicant, including that he suffered from the behavioural disorders set out in the report of Doctors Foley and Kissane; that he had a very supportive family; that the support services he had been accessing in Limerick had closed and were no longer available to him; that he was susceptible to peer influence, and that he had no previous convictions.
8. Mrs. Allen recalls that the District Court judge then "indicated that he was minded to request a report from the Probation and Welfare Service". Sergeant Cronin puts it in slightly stronger terms in that he states that the District Court judge then directed a "pre-sanction report"....
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