B. (A Minor Suing Through His Mother and Next Friend, C.) v The Director of Oberstown Children Detention Centre

• Jurisdiction: Ireland
• Judge: Ms. Justice Reynolds
• Judgment Date: 25 October 2018
• Neutral Citation: [2018] IEHC 601
• Docket Number: [179/2018 J.R.]
• Court: High Court
• Date: 25 October 2018

[2018] IEHC 601

THE HIGH COURT

JUDICIAL REVIEW

Reynolds J.

[179/2018 J.R.]

BETWEEN

B. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND, C.)

APPLICANT

AND

THE DIRECTOR OF OBERSTOWN CHILDREN DETENTION CENTRE

AND

THE MINISTER FOR CHILDREN AND YOUTH AFFAIRS, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Judicial review – Order of certiorari – Enhanced remission – Applicant seeking enhanced remission of his sentence – Whether the provisions of s. 151 of the Children Act 2001 applied to the applicant

Facts: The applicant applied to the High Court for an order of certiorari, by way of application for judicial review, quashing the refusal of the respondents, the Director of Oberstown Children Detention Centre, the Minister for Children and Youth Affairs, Ireland and the Attorney General, to allow the applicant to apply for enhanced remission of his sentence. Alternatively, the applicant sought an order of mandamus compelling the respondents to consider the applicant's application for enhanced remission of his sentence and/or a declaration that the failure or refusal of the respondents to allow the applicant to seek enhanced remission is unlawful. The applicant argued that the provisions of s. 151 of the Children Act 2001 applied to him and he was not being allowed to "apply for remission based on his good conduct and industry" in consequence of which the respondents were in breach of the applicant's rights under s. 151(4). The applicant submitted that any disparity of treatment between adult prisoners and juvenile prisoners is unlawful by reason of the guarantee of equality before the law contained within Article 40.1.

Held by Reynolds J that the applicant's contention that he was detained pursuant to s. 151 of the 2001 Act was unfounded and based on mere assertion. In all the circumstances, Reynolds J was satisfied that it was not appropriate to compare the regime that applies to the applicant with the regime that applies to adult prisoners.

Reynolds J held that the application must fail.

Application refused.

JUDGMENT of Ms. Justice Reynolds delivered the 25th day of October, 2018

1 This is an application for an order of certiorari, by way of application for judicial review, quashing the respondents" refusal to allow the applicant to apply for enhanced remission of his sentence. Alternatively, the applicant seeks an order of mandamus compelling the respondents to consider the applicant's application for enhanced remission of his sentence and/or a declaration that the failure or refusal of the respondents to allow the applicant to seek enhanced remission is unlawful.

Background

2 The applicant is a minor and is currently detained in Oberstown Children Detention Centre pursuant to the provisions of s. 142 of the Children Act, 2001 (hereinafter referred to as 'the Act of 2001').

3 The applicant received a three-year detention order on the 21st November, 2017 (backdated to the 23rd May, 2017) with the final 20 months suspended on conditions of good behaviour. With the usual remission of one-quarter of his sentence, the custodial aspect of the applicant's detention order was due to expire on the 23rd May, 2018.

4 The applicant initially made good progress with his rehabilitation whilst in custody and sought to be considered for enhanced remission, by way of letter sent to the respondent on the 22nd January, 2018.

5 The response on behalf of the first named respondent, by letter dated the 25th January, 2018, was as follows:-

'Consideration is currently being given, by the Department of Children and Youth Affairs, to the commencement of the relevant provisions of the Children Act, 2001, which provide for remission in the Children Detention Schools.'

6 The applicant initiated judicial review proceedings on the 26th February, 2018. The applicant contends that he should be entitled to apply for enhanced remission (up to a third of his sentence) and that the respondents" refusal to consider such application is unlawful.

Grounds upon which the reliefs are sought

7 In his Statement of Grounds, the applicant relies upon the following matters to ground the reliefs sought:

'7. Notwithstanding the heading of the Order of the Circuit Criminal Court, the Applicant is the subject of supervision and detention pursuant to s. 151 of the Children Act, 2001.

8. The failure of the Respondents to allow the Applicant to earn remission through industry and good conduct is in breach of s. 151(4) of the Children Act, 2001.

9. The failure and/or refusal of the Respondents to allow the Applicant to apply for remission based on his good conduct and industry is otherwise than in accordance with s. 151(4) of the Children Act, 2001.

10. The Respondents" failure to create an open, transparent, and fair scheme governing the consideration of applications for remission through industry and good conduct is unconstitutional and a failure to give effect to the will of the legislature.

11. The Respondents" failure to create an open, transparent, and fair scheme governing the consideration of applications for remission through industry and good conduct is in breach of their obligations pursuant to s. 3 of the European Convention on Human Rights Act, 2003.

12. The failure to provide the Applicant an opportunity to obtain enhanced remission is in breach of the constitutional rights to equality under the constitution and otherwise than in accordance with the constitution in that it places the Applicant at a marked disadvantage to an adult prisoner.

13. In all the circumstances, the failure to provide the Applicant an opportunity to obtain enhanced remission is unlawful.'

The current circumstances of the applicant

8 Since the proceedings were initiated, the applicant has been unlawfully at large and it is acknowledged that the likelihood of the applicant being successful in any application for enhanced remission has diminished, in the event of such application being considered.

9 However, it is submitted on behalf of the applicant that he retains the right to appeal for an enhanced remission and to have such application properly considered.

The applicant's detention

10 The Order of the Circuit (Criminal) Court dated 21st November, 2017 directed that the applicant be detained pursuant to the Children Act, 2001, s. 142 (as amended) at Oberstown Children Detention Campus.

11 Notwithstanding this, the applicant posits that he is the subject of a supervision and detention order pursuant to s. 151 of the Act of 2001.

The relevant statutory provisions

12 Part 9 of the Act of 2001 governs the powers of the courts in relation to child offenders.

13 Section 142 provides as follows:

'A court may, in accordance with this Part, by order (in this Part referred to as a 'children detention order') impose on a child a period of detention in a children detention school ... specified in the order.'

14 Thereafter, ss. 143-151 make it clear that a court should only detain a child where there is no suitable alternative to the detention.

15 Section 151(4) of the Act further provides that:

'Where the child is released from detention on earning remission of sentence by industry or good conduct or on being given temporary release under section 2 or 3 of the Act of 1960, supervision of the child in the community under the order shall be deemed to commence on the child's release.'

16 This subsection is to be amended by s. 10 of the Children (Amendment) Act, 2015. That section has yet to be commenced. When it does commence, it will provide as follows:

'Where the child is released from detention on being granted remission of portion of his or her period of detention in a children detention school pursuant to regulations made under section 221, supervision of the child in the community under the order shall be deemed to commence on the child's release.'

17 The subsection, therefore, provides for the right to earn remission through industry or good conduct. However, it is silent on whether one is otherwise entitled to remission.

The applicant's claim in relation to enhanced remission

18 The cornerstone of the applicant's claim is that the respondents have acted unlawfully by refusing to allow the applicant to apply for enhanced remission.

19 Any...