B v Director of Oberstown

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O’Malley,Ms. Justice Iseult O'Malley
• Judgment Date: 29 April 2020
• Neutral Citation: [2020] IESC 18
• Court: Supreme Court
• Docket Number: [Appeal No. 176/2018]
• Date: 29 April 2020

BETWEEN

B. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND J.G)

APPELLANT

AND

THE DIRECTOR OF OBERSTOWN CHILDREN DETENTION CENTRE

AND

THE MINISTER FOR CHILDREN AND YOUTH AFFAIRS IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2020] IESC 18

Clarke CJ.

O’ Donnell J.

Dunne J.

O’Malley J.

Irvine J.

[Appeal No. 176/2018]

THE SUPREME COURT

Enhanced remission – Juvenile offender – Guarantee of equality before the law – Appellant seeking enhanced remission – Whether the failure to consider an application for enhanced remission from a juvenile offender constituted a breach of the guarantee of equality before the law enshrined within Article 40.1 of the Constitution

Facts: The appellant, a minor, on the 21st November 2017, pleaded guilty to one count of robbery and was sentenced by the Dublin Circuit Criminal Court to three years detention. The sentence was backdated to the 23rd May 2017, and the final 20 months were suspended on the usual terms along with an undertaking to abide by the directions of the Probation Service for that period. Since he was entitled, under the rules applied to children after the judgment in Byrne (a minor) v Director of Oberstown [2013] IEHC 562, to ordinary remission amounting to one quarter of his total sentence, the custodial aspect of the appellant’s detention order was due to expire on 23rd May 2018. By letter dated the 22nd January 2018 sent on his behalf by his solicitor, he applied to be considered for enhanced remission. The letter stated that a refusal to permit him to apply placed him in a worse position than adult prisoners and was unfair. The first respondent, the Director of Oberstown Children Detention Centre, replied on the 25th of January 2018. It was stated that Oberstown had taken advice in relation to the enquiry, and that consideration was being given by the Department of Children and Youth Affairs to the commencement of the provisions of the Children Act 2001 providing for remission in children detention schools. The appellant’s solicitor responded by inviting the Oberstown authorities to create rules that would permit his client to apply for enhanced remission. No substantive answer having been received, leave to seek judicial review was sought and granted on the 26th February 2018. Judgment was delivered on the 25th October 2018 by the High Court (Reynolds J). Having dismissed as “unfounded and based on mere assertion” the appellant’s contention that he was detained pursuant to s. 151 of the 2001 Act, as opposed to s. 142, the trial judge also rejected his claim that a failure to consider an application for enhanced remission from a juvenile offender constituted a breach of the guarantee of equality before the law enshrined within Article 40.1 of the Constitution. By a determination of the 20th of February 2019, the Supreme Court granted leave for a direct appeal from the High Court.

Held by O’Malley J that the appellant appeared to have maintained the argument that he was dealt with under s. 151 because of the belief that it was the only provision that allows for suspension or part-suspension and this was clearly incorrect, having regard to s. 144 in its entirety. The Court had been asked to accept that the penal regime that applies to all children should be compared with that established for adults and O’Malley J held that the presumption of the legislature, that the differences between children and adults calls for different regimes, had not been shown to be factually incorrect or unfair in principle.

O’Malley J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Iseult O’Malley delivered the 29th day of April 2020

Introduction

1 This appeal raises an issue as to whether children serving sentences of detention under the Children Act 2001 are entitled, on the basis of the equality guarantee in Article 40.1 of the Constitution, to be treated in the same manner as adult prisoners in respect of all aspects of the rules regarding remission of sentences. In 2013, in Byrne (A Minor) v. Director of Oberstown [2013] IEHC 562, Hogan J. held that a minor serving a sentence of detention in Oberstown was entitled to the standard rate of one-quarter remission. That decision was accepted by the State authorities, and minors are now granted standard remission for good conduct as a matter of course. The appellant in the instant case, who was sentenced to a term of detention in Oberstown as a teenager, argues that, on the same logic, he was entitled to be considered for enhanced remission of up to one third of his sentence, in the same way as adult prisoners are under the Prison Rules.

The statutory context – detention of children

General principles

2 The Children Act 2001 (“the Act of 2001”) was a comprehensive and radical overhaul of the law governing the juvenile criminal justice system. Among other innovations, it treats all persons under the age of 18 as children. A wide variety of procedures and processes are put in place that have as their objective the diversion of children away from crime and from the formal criminal justice system. However, the Act also envisages prosecution and punishment, including deprivation of liberty.

3 Where a court is concerned with a child charged with a criminal offence, the overall considerations are set out as follows in s.96 of the Act:

96.– (1) Any court when dealing with children charged with offences shall have regard to

(a) the principle that children have rights and freedom before the law equal to those enjoyed by adults and, in particular, a right to be heard and to participate in any proceedings of the court that can affect them, and

(b) the principle that criminal proceedings shall not be used solely to provide any assistance or service needed to care for or protect a child.

(2) Because it is desirable wherever possible –

(a) to allow the education, training or employment of children to proceed without interruption,

(b) to preserve and strengthen the relationship between children and their parents and other family members,

(c) to foster the ability of families to develop their own means of dealing with offending by their children, and

(d) to allow children reside in their own homes,

any penalty imposed on a child for an offence should cause as little interference as possible with the child’s legitimate activities and pursuits, should take the form most likely to maintain and promote the development of the child and should take the least restrictive form that is appropriate in the circumstance; in particular, a period of detention should be imposed only as a measure of last resort.

(3) A court may take into consideration as mitigating factors a child’s age and level of maturity in determining the nature of any penalty imposed, unless that penalty is fixed by law.

(4) The penalty imposed on a child for an offence should be no greater than that which would be appropriate in the case of an adult who commits an offence of the same kind and may be less, where so provided for in this Part.

(5) Any measures for dealing with offending by children shall have due regard to the interests of any victims of their offending.

Sentences of detention under the Children Act 2001

4 The court has available to it a range of mechanisms which are intended, in accordance with the principles set out in s.96, to ensure that detention is imposed only as a measure of last resort. Where the court is satisfied of the guilt of the child, it may in any case, and must in most cases where either a community sanction or detention is contemplated, adjourn for the purpose of seeking a probation officer’s report to assist in determining a suitable community sanction.

5 The provisions in respect of community sanctions are set out in ss.118 to 141 as amended. In imposing such a sanction, the court may include conditions aimed at preventing the child from committing further offences. These may require positive action on the part of the child, such as attendance at school, counselling or medical treatment. They may relate to the child’s employment or place of residence. Conditions can also limit or prohibit association with any specified person or persons of a specified class, or the consumption of alcohol. In general, they may relate to such other matters as the court considers appropriate in relation to the child. Failure to comply with a community sanction or with any condition to which it is subject may lead to the making of a detention order, where the court is satisfied that such is the only suitable way of dealing with the child (s.116(4)).

6 Section 142 as amended provides that a court may, in accordance with the Act, sentence a child to a period of detention in a children detention school. Pursuant to s.143 as amended, the court shall not make such an order unless satisfied that it is the only suitable way of dealing with the child. Section 149 (as substituted by s.141 of the Criminal Justice Act 2006) provides that the term of detention must not be longer than the term that could be imposed on an adult convicted of such an offence.

7 Under s.144 of the Act the making of a detention order may be deferred “in accordance with the provisions of this section” if a place in a detention school is not available “or for any other sufficient reason”. The making of the order may be deferred only if the court is satisfied that it is in the interests of justice. If the reason for deferral is the unavailability of a place, the Director of the school must apply to the sentencing court for the order to be made when a place becomes available. If, however, the order is deferred for any other reason, the court must state the period of detention that is to be deferred and there must be a resumed hearing on a specified date. The judge must explain to the child the reason for the deferral and the expectations of the court as to the child’s...