Brophy v Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 02 July 2024
• Neutral Citation: [2024] IEHC 392
• Docket Number: [Record No. 2022/601 JR]
• Court: High Court

Between:

Stuart Brophy

Applicant

and

The Director of Public Prosecutions, Ireland, The Attorney General

Respondents

[2024] IEHC 392

[Record No. 2022/601 JR]

THE HIGH COURT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 2nd day of July, 2024.

INTRODUCTION

1 . Special statutory provision is made for child offenders under the provisions of the Children Act, 2001 (hereinafter “the 2001 Act”). Such provision includes an enhanced possibility for summary disposal before the Children's Court under s. 75 of the 2001 Act. The benefit of this provision is lost where the young offender reaches the age of majority and “ ages out”.

2 . The Applicant was a juvenile (aged 17 years and almost one month) at the time of an offence of robbery alleged to have been committed by him in April, 2019. By the time the Applicant was first brought before the Children's Court on the 9th of March, 2022, almost three years later, the discretion vested in that Court by s.75 of the 2001 Act to deal summarily with any indictable offence committed by a child was no longer applicable, as the Applicant had by then reached the age of majority. No provision has been made to extend the procedural benefit prescribed under s.75 to a person over 18 years where they were a child when the alleged offences were committed.

3 . In these proceedings the exclusion of the Applicant from the special procedure available to young offenders under s. 75 of the 2001 Act is challenged as unlawful. In essence, the Applicant contends that a fundamental purpose of the 2001 Act is to provide special treatment for juvenile offenders in the criminal justice system and to this end the s.75 hearing confers an important procedural benefit to juvenile offenders. It is argued that the exclusion of an alleged juvenile offender from this mechanism, simply because he turned 18 after the alleged offence occurred but before the prosecution of same against him, is perverse, without justification and constitutes an unlawful form of discrimination either contrary to Articles 40.1 and/or 40.3 and/or 42A of Bunreacht na hÉireann and/or Articles 6 and/or 8 and/or 14 of the European Convention on Human Rights [hereinafter “the Convention”].

FACTUAL BACKGROUND

4 . It is alleged that on the 15th April 2019, at a time when the Applicant was a child for the purpose of the 2001 Act, he committed an offence of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001. He stands co-accused with an older male who was 36 years of age on the date of the alleged offence. The prosecution case is that the older co-accused entered a shop with a knife and told the shop worker to open the till. A second male, the prosecution allege to be the Applicant, entered the shop when the first male could not open the till and had the role of “ lookout”.

5 . The material dates are as follows:

19 March 2002	Applicant's date of birth.
15 April 2019	Alleged offence (Applicant was 17 years and 1 month).
19 February 2020	Applicant arrested and detained.
16 February 2022	Applicant arrested for purpose of charge and station bailed.
9 March 2022	Evidence of arrest charge and caution before the Children Court.
20 April 2022	Book of evidence served on Applicant and order sending forward for trial in Circuit Court made in the District Court.
18 May and 27 July 2022	Appearances before Dublin Circuit Criminal Court Court.

6 . From the foregoing chronology, it is apparent that there was a delay of almost three years between the commission of the alleged offence and the Applicant's first appearance before the Children's Court. The Applicant was 19 years and 11 months old when the matter first came before the District Court on the 9th of March, 2022.

PROCEEDINGS

7 . Proceedings were commenced by ex parte application for leave to proceed by way of judicial review opened before the High Court (Meenan J.) on the 19th of July, 2022. Leave to proceed by way of judicial review was subsequently ordered on the 17th of October, 2022. The primary relief sought in the proceedings is declaratory relief in reliance on Articles 40.1, 40.3 and 42A of Bunreacht na hÉireann in respect of the Applicant's exclusion from the procedural protections conferred on children under s. 75 of the 2001 Act by reason of having turned 18 years of age. He also seeks an order of Certiorari quashing the return for trial made on the 20th of April, 2022 and an order restraining his continued prosecution or in the alternative an order limiting the sentencing jurisdiction of the Circuit Court to that of the Children Court/District Court.

8 . Although, the Applicant seeks declarations that his rights under Articles 42A and 40.3 have been breached, these claims have not been pursued save to inform the Article 40.1 argument. The crux of the Applicant's case is an alleged breach of equality provisions of Bunreacht na hÉireann and, in the event that his constitutional claim fails, the Convention.

9 . The Respondents were separately represented before me and filed separate Statements of Opposition and written submissions. The First Named Respondent's Statement of Opposition was filed in July, 2023 and was followed by a Statement of Opposition on behalf of the Second and Third Named Respondents at the end of September, 2023.

10. The Respondents each plead that the application is out of time.

11 . The Second and Third Named Respondents rely, in particular, on the fact that the Applicant has not established that s. 75 would have been invoked to establish summary jurisdiction in the District Court in his case in view of the seriousness of the offence alleged and his lack of engagement with the Juvenile Liaison Officer. It is denied that the Applicant has established that his rights have been breached.

12 . Reliance is also placed on the presumption of constitutionality, particularly in regulating complex areas of social policy. It is maintained that the Oireachtas is entitled to draw differentiations between differently situated classes of people in its legislative enactments. It is further pointed out that it remains open to the Applicant to make submissions before the court of trial at sentencing stage in relation to his age and maturity at the time of the offence.

ISSUES

13 . Even though it is established in cases such as B.F. v. Director of Public Prosecutions [2001] IESC 18, [2001] 1 I.R. 656, G. v. DPP, Donoghue v. Director of Public Prosecutions [2014] IESC 56, [2014] 2 I.R. 762, A.B. v. Director of Public Prosecutions, unreported, Court of Appeal, 21 January 2020; Director of Public Prosecutions v. L.E. [2020] IECA 101 and Furlong v. Director of Public Prosecutions [2022] IECA 85 that in the case of a criminal offence alleged to have been committed by a child or young person, there is a special duty on the State authorities, over and above the normal duty of expedition, to ensure a speedy trial, the Applicant does not in these proceedings seek to restrain his trial on delay grounds in reliance on this delay jurisprudence.

14 . Rather than seek to restrain his trial on grounds of delay, instead, the Applicant squarely maintains a challenge to the constitutionality of his exclusion from the benefit of s. 75 of the 2001 Act. Issues arising on the pleadings include:

• (i) whether the proceedings are time barred?

• (ii) whether, but for age consideration, summary disposal under s. 75 of the 2001 Act was open on the facts and circumstances of this case?

• (iii) whether the exclusion from the scope of s. 75 of the 2001 Act of persons who are alleged to have committed a crime when a child but who have turned 18 by the time the Children's Court determines the question of jurisdiction impermissibly discriminates against the Applicant contrary to Articles 40.1 and/or 40.3 and/or 42A of Bunreacht na hÉireann?

• (iv) whether s. 75 of the 2001 Act is incompatible with Articles 6 and/or 8 and/or 14 of the European Convention on Human Rights by its exclusion of persons who are alleged to have committed a crime when a child but who have turned 18 by the time the Children Court determines jurisdiction?

15 . Although the issue of an appropriate remedy was canvassed briefly in written submissions (with reference to B.G. v. Judge Murphy [2011] 3 I.R. 748 and Lennon and Reeves and Lennon v. Disabled Drivers Medical Board of Appeal [2020] IESC 31), the case proceeded before me on the basis that were the Applicant to be ultimately successful on any point, then the issue of remedy should be the subject of a separate hearing.

LEGAL FRAMEWORK

Constitutional Framework

16 . The right of the citizen to be treated equally and the special status of the child are constitutional values enshrined in the fundamental law of our State.

17 . In terms of the equality guarantee, Article 40. l of an Bunreacht na hEireann provides as follows:

“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

18 . Introduced following constitutional amendment on the 28th of April, 2015, building on the protection of the person afforded under Article 40.3, Article 42A of an Bunreacht na hEireann makes special provision for the rights of the child by further providing:

“The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”

Statutory Framework

19 . The Applicant is accused of the indictable offence of robbery, a serious offence. Section 14(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides that a person is guilty of robbery if he or she steals, and immediately before or at the time of doing so, and in order to do so, uses...