Brophy v The Director of Public Prosecutions, Ireland, and the Attorney General

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Gerard Hogan,Ms. Justice Iseult O'Malley
• Judgment Date: 10 February 2026
• Neutral Citation: [2026] IESC 7
• Docket Number: S:AP:IE:2024:000151

Between/

Stuart Brophy

Applicant/Appellant

and

The Director of Public Prosecutions, Ireland and The Attorney General

Respondents

[2026] IESC 7

O'Donnell C.J.

Dunne J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

Collins J.

S:AP:IE:2024:000151

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 10 ^th day of February 2026

Introduction

1 . While Article 40.1 is perhaps the single most litigated provision of the Constitution, the courts have at times struggled to give a consistent and yet effective interpretation of the principles of equality which this clause contains. This appeal may be said to provide another almost paradigmatical example of the difficulties which the interpretation of Article 40.1 entails.

2 . In the present case the applicant is alleged to have committed an indictable offence (namely, robbery, contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001) at a time when he was still a minor for the purposes of the Children Act 2001 (“the 2001 Act”), i.e., less than 18 years: see s. 3(1) of the 2001 Act. Section 75 of the 2001 Act gives a judge of the Children Court (i.e., a specialist judge of the District Court) a jurisdiction to deal summarily with any child charged with any indictable offence, save for those offences which must be tried in the Central Criminal Court (such as murder or rape) or manslaughter.

3 . The effect of s. 75 of the 2001 Act is that the key difference between the trial of indictable offences in the case of adults on the one hand and that of children on the other, is that whereas the Director of Public Prosecutions is generally given the power to veto such summary disposal in the case of adults, she has no such power in the case of children. In the case of a charge of robbery, the Director is given the power by s. 53 of the Criminal Justice (Theft and Fraud Offences) Act 2001 to veto the summary trial of an adult accused.

4 . It is otherwise in the case of children, as s. 75(1) of the 2001 Act provides that the Children Court may deal summarily with an indictable offence unless the Court is of opinion that the offence does not constitute a minor offence fit to be tried summarily. (For convenience and to avoid confusion I propose to describe the Children Court as the District Court in the remainder of this judgment). Where the child does not elect for jury trial, then, in the case of indictable offences coming within s. 75, it is the judge of the Court who must make the decision as to whether the child is to be tried summarily. In this respect the District Court must have regard to factors such as “the age and level of maturity of the child concerned”: see s. 75(2)(a).

5 . In the present case the applicant was just 17 years of age at the time of the alleged offence which is said to have taken place on 15 ^th April 2019. The accused is alleged to have acted as a “lookout” in respect of the robbery and it is contended that his co-accused (a much older male) forced a shopworker to open a shop till and some €300 was then stolen. The applicant was originally arrested and detained by a member of An Garda Síochána on 19 ^th February 2020. This delay was apparently caused by the fact that the investigating Garda had been injured for some of this period. There were also difficulties in making contact with the applicant.

6 . The applicant turned 18 years of age in March 2020. In the meantime, the file had been sent to the Garda Youth Diversion Office in August 2020, but as the applicant subsequently failed to meet with his designated Juvenile Liaison Officer, he was deemed unsuitable for inclusion in the Garda Youth Diversion Programme. The file was ultimately returned to the Director of Public Prosecutions. A prosecution was directed on 16 ^th February 2022 and the matter then came before the District Court in March 2022. As the applicant was by that stage well over 18 years of age, s. 75 of the 2001 Act did not apply. The Director did not consent to summary trial and the applicant was, by a decision of the District Court, then returned to the Circuit Court for arraignment and trial. The applicant then commenced judicial review proceedings in which he challenged the constitutionality of the relevant provisions of s. 75 of the 2001 Act, on Article 40.1 equality grounds insofar as he has been deprived of its benefits by reason of the fact that he is now an aged out minor.

7 . Before proceeding further, it should be observed that this is another case of an alleged unconstitutionality by omission. As the applicant would not obtain any practical benefit by the positive invalidation of the relevant provisions of s. 75(1) and s. 75(2), the claim essentially amounts to the contention that by failing to cater for the position of aged out minors, the Oireachtas has thereby breached the equality provisions of Article 40.1.

Section 75 of the 2001 Act and the earlier case law

8 . Section 75 of the 2001 Act is an enlightened and benevolent provision designed to reflect the immaturity of juvenile offenders. It may be said to represent an endeavour by the Oireachtas to give effect to Article 42A.1 by protecting the rights of children in this way. Unfortunately, however, the Oireachtas when enacting the 2001 Act failed to address one obvious issue, namely, what should happen to the young offender who commits – or is alleged to have committed – a crime as a minor but who is only charged and prosecuted upon reaching adulthood. It is the failure on the part of the Oireachtas to address this question in the context of these – and other – safeguards and protections provided for children by the 2001 Act that has given rise to a series of important recent decisions of this Court: see The People (Director of Public Prosecution) v. CC [2025] IESC 11; The People (Director of Public Prosecutions) v. PB [2025] IESC 12; Doe (No. 1, 2 and 3) v. Director of Public Prosecutions [2025] IESC 17.

9 . It is important to note, however, that in none of these cases was the constitutionality of these features of the 2001 Act actually at issue, whether by reference to Article 40.1 or otherwise. The absence of any challenge to the constitutionality of the relevant provisions of s. 75 of the 2001 Act meant that these provisions enjoyed the presumption of constitutionality, and these earlier decisions were naturally premised on that basis. In addition, as O'Malley J. notes at paragraph 98 of her judgment, the question of the proper interpretation of s. 75(2) “was not disposed of in Doe.” This, as we shall see, is a critical consideration so far as any evaluation of the constitutional question is concerned. The present case is furthermore quite different from those earlier cases in that unlike the earlier cases the applicant has in fact challenged the constitutionality of these provisions. It is this question which is now directly before this Court. Accordingly, therefore, I consider that the issue of the constitutionality of s. 75 is res integra and must now be considered for the first time by this Court.

10 . There has already been one case, however, where a cognate Article 40.1 equality issue arose in relation to the sentencing provisions contained in s. 96(2) and (3) of the 2001 Act and their interaction with the mandatory life sentence provisions in respect of murder contained in s. 2 of the Criminal Justice Act 1990. In Musueni v. Ireland [2024] IEHC 523, Simons J. held that the then prevailing mandatory life sentence provisions for murder were unconstitutional so far as aged out minors were concerned. This was a case where an “aged out” minor was charged with murder. Had he been tried and convicted while he was still underage, the trial court would have had the option of imposing a lesser sentence than the mandatory life sentence for murder as otherwise prescribed by s. 2 of the Criminal Justice Act 1990 and it could have had regard to his youth and maturity at the time of the murder when imposing such sentence. Conversely, once the accused had attained his majority and was convicted at that point, the trial judge would have had no option but to impose the mandatory life sentence prescribed by the Criminal Justice Act 1990, even though he was a minor at the time of the actual murder.

11 . Simons J. held that this differing treatment was contrary to Article 40.1, for – as he explained at para. 55 of his judgment – there was:

“[N]o objective justification for the differing treatment afforded to a juvenile offender depending on the happenstance of their age as of the date of sentencing. The point can be illustrated by taking the example of two youths. Suppose that the two youths are the same age and carry out a murder jointly while under the age of eighteen years. Further suppose that, for logistical reasons, separate trials are directed, and that the chronology is such that one youth is sentenced prior to reaching his eighteenth birthday, with the other youth being sentenced as an adult. The effect of the legislation is such that only the first youth would be entitled to rely on his age and level of maturity as a mitigating factor. The second youth would be subject to a mandatory life sentence. The difference of treatment eventuates notwithstanding that the two youths are the same age and were found guilty of the same murder. Crucially, this difference in treatment is logically incapable of supporting the legislative purpose underlying this strand of the sentencing principles, namely that the potential that the moral culpability of a juvenile offender may be less than that of an adult offender should be taken into account in sentencing.”

12 . In my view, these are the guiding principles so far as the application of Article 40.1 to the present case is concerned. One might add that, as O'Malley J. observed in Donnelly v. Minister for Social Protection [2022] IESC 31, [2023] 2...