Sean Byrne (A Minor) v Director of Oberstown School

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date10 December 2013
Neutral Citation[2013] IEHC 562
Date10 December 2013
Docket Number[2013 No. 2077 SS]

[2013] IEHC 562

THE HIGH COURT

[No. 2077 SS/2013]
Byrne (a minor) v Director of Oberstown School
IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

SEAN BYRNE (A MINOR) SUING BY HIS NEXT FRIEND, CLAIRE BYRNE
APPLICANT

AND

DIRECTOR OF OBERSTOWN SCHOOL
RESPONDENT

CONSTITUTION ART 40.4

CONSTITUTION ART 40.4.2

CONSTITUTION ART 40.1

PRISONS ACT 2007 S35

PRISONS ACT 2007 S35(2)(F)

PRISON RULES 2007 SI 252/2007 RULE 59

ENFORCEMENT OF COURT ORDERS ACT 1926 S18

PRISONS ACT 2007 S2

PRISON RULES 2007 SI 252/2007 RULE 2(2)

O'BRIEN v GOVERNOR OF LIMERICK PRISON 1997 2 ILRM 349 1997/5/1877

CALLAN v IRELAND & AG 2013 2 ILRM 257 2013 IESC 35

CHILDREN ACT 2001 S96(1)(B)

CHILDREN ACT 2001 S142

CHILDREN ACT 2001 S151(1)

CHILDREN ACT 2001 S151(2)

CHILDREN ACT 2001 S151(3)

CHILDREN ACT 2001 S151(4)

CHILDREN ACT 2001 S151(5)

CHILDREN ACT 2001 S151(6)

CHILDREN ACT 2001 S156A

CRIMINAL JUSTICE ACT 2006 S143

CHILDREN ACT 2001 S156B

CRIMINAL JUSTICE ACT 2006 S144

CHILDREN ACT 2001 S160

CHILDREN ACT 2001 S88

CHILDREN ACT 2001 (DESIGNATION OF REMAND CENTRES) ORDER 2012 SI 136/2012 ART 3(B)

CHILDREN ACT 2001 S156A(3)

CHILDREN ACT 2001 S156A(4)

CHILDREN ACT 2001 S179

COX v IRELAND & ORS 1992 2 IR 503

OFFENCES AGAINST THE STATE ACT 1939 S34

M (S) v IRELAND & ORS (NO 2) 2007 4 IR 369 2007/38/7813 2007 IEHC 280

G (B) v DISTRICT JUDGE MURPHY & ORS (NO 2) 2011 3 IR 748 2011/22/5806 2011 IEHC 445

D (M) (A MINOR) v IRELAND & ORS 2012 1 IR 697 2012 2 ILRM 305 2012/9/2311 2012 IESC 10

MCM (M) v MANAGER OF TRINITY HOUSE & ORS 1995 1 IR 595 1995 2 ILRM 546 1997/4/1531

CONSTITUTION ART 34.1

SHEERIN, STATE v KENNEDY & ORS 1966 IR 379

CONSTITUTION ART 40.4.1

DISTRICT JUDGE MCMENAMIN v IRELAND & ORS 1996 3 IR 100

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

FLEMING v IRELAND & ORS 2013 2 ILRM 9 2013 IEHC 2

OFFENCES AGAINST THE PERSON ACT 1861 S62

CONSTITUTION ART 40.3

CONSTITUTIONAL LAW

Equality

Detention - Juvenile offenders - Remission - Different juvenile offenders' institutions - Remission not applying to detention in Oberstown Boys School - Whether juvenile offenders in Oberstown entitled to same remission as offenders in other institutions - MD (a minor) v Ireland [2012] IESC 10, [2012] 1 IR 697 followed - Callan v Ireland [2013] IESC 35, (Unrep, SC, 18/7/2013); Carmody v Minister for Justice [2009] IESC 71, [2010] 1 IR 635.Cox v Ireland [1992] 2 IR 503; District Judge McMenamin v Ireland [1996] 3 IR 100; Fleming v Ireland [2013] IEHC 2, [2013] 2 ILRM 73; BG v Judge Murphy [2011] IEHC 455, [2011] 3 IR 748; McM v The Manager of Trinity House [1995] 1 IR 595; [1995] 2 ILRM 546; O'Brien v Governor of Limerick Prison [1997] 2 ILRM 349; SM v Ireland (No 2) [2007] IEHC 280, [2007] 4 IR 369 and The State (Sheerin) v Kennedy [1966] IR 379 considered - Prison Rules 2007 (SI 252/2007), r 9 - Children Act 2001 (No 24) - Prisons Act 2007 (No 10), s. 35 - Constitution of Ireland 1937, Article 40.1 and 40.4.2 - Relief granted (2013/2077SS - Hogan J - 10/12/2013) [2013] IEHC 562

Byrne (a minor) v Director of Oberstown School

The applicant, Sean Byrne, was 17 years old at the time of these proceedings. He was convicted in December 2011 of attempted robbery, an offence committed in November 2010 when the applicant was 14 years old. He was sentenced on the 17 th of June 2013 to two years detention with the final twelve months suspended under a number of conditions. The judge envisaged that the applicant be detained at Oberstown Boys School (Obertstown) rather than St. Patrick"s Institution and the sentence was deferred until a place became available for the applicant. The sentence was activated on the 9 th of July 2013 and the applicant was given the release date of the 26 th of February 2014. However, had the applicant been eligible for remission of sentence in the same manner as other offenders serving their detention in places other than Obertstown, the release date would have been the 26 th of November, 2013 instead.

The issue for consideration was whether young offenders detained at Obertstown were entitled to remission in respect of their sentences in the same fashion as other prisoners and young offenders detained at St. Patrick"s Institution. While it was accepted that no provision was made by law for such remission at Obertstown, the applicant asserted that the failure to provide this amounted to unconstitutional discrimination contrary to Article 40.1 of the Constitution. The statutory power to grant remission, set out in section 35 of the Prisons Act 2007 (the 2007 Act) stipulated that any rules made by the Minister for the regulation of prisons may provide for 'the remission of a portion of a prisoner"s sentence'. The rules are set out in Rule 59 of the Prison Rules.

The court noted that there was no doubt that the guarantee of equality in Article 40.1 of the Constitution applied to legislation governing the sentencing process. As such, it was clear that a law which differentiated between offenders with regards to eligibility for remission would engage Article 40.1. The court rejected the argument that the Oireachtas regarded children detention schools such as Obertstown as being essentially different from detention elsewhere such as in St. Patrick"s Institution. Held by Hogan J., where such an argument is rejected, any potential justification for the non-application of the remission rules to Obertstown 'simply breaks down'. It was decided that a consideration of the language of the Children Act 2001 determined that detention at a children detention school was simply another manifestation of detention within the juvenile criminal justice system.

The court concluded that where a custodial regime brought about such a 'stark difference' in terms of the release dates of prisoners due to the location of the place of detention, Article 40.1, with its fundamental command of equality before the law, was engaged. The application of the remission rules to one place (St. Patrick"s Institution) and not another (Obertstown) was therefore decided to be unjust and a clear breach of the equality set out in Article 40.1. The language of Article 40.3 required the court 'to grant such remedy as it considers necessary to vindicate the right concerned'. Hogan J. held that the only way to accomplish this was to treat the applicant as though the provisions of Rule 59 were applicable to him. The applicant"s continued detention at Obertstown was found not to be in accordance with the law.

The court therefore ordered his release from custody.

1

JUDGMENT of Mr. Justice Hogan delivered on 10th December, 2013

2

1. The problems posed by juvenile offenders is one which has exercised penologists and social reformers for the best part of 150 years. It is now accepted that a custodial sentence should be one of last resort and that where such is required, these offenders should be kept apart from the general adult prison population. This admirably enlightened philosophy is reflected in the provisions of the Children Act 2001 ("the 2001 Act").

3

2. The present Article 40.4.2 proceedings, however, raise an intensely practical problem which nonetheless obliges us to some degree to confront and examine the nature of the special custodial regimes for young offenders provided for by the 2001 Act. The problem arises in this way: are young offenders detained at the children's detention school at the Oberstown Boys School ("Oberstown") entitled to remission in respect of their sentences in the same fashion as other prisoners and - perhaps more to the point - young offenders who are detained at St. Patrick's Institution?

4

3. It is accepted that no explicit provision is made by law for such remission at Oberstown. The applicant maintains, however, that the failure to accord such treatment to such offenders amounts to a form of unconstitutional discrimination contrary to Article 40.1 of the Constitution. To understand this claim it is necessary first to consider the relevant facts.

5

4. The applicant is presently seventeen years of age, having been born on 10 th July. 1996. On 13 th December, 2011, he was convicted of the offence of attempted robbery following a plea of guilty in the Circuit Court. This offence had occurred in November 2010 when the applicant was but 14 years of age. Another offence was taken into account and a nolle prosequi was entered in respect of the third offence. Bail had earlier been granted by the District Court and the applicant had then sent forward for trial. However, the applicant spent three months in custody in respect of these charges at various dates and on three different occasions in 2011, 2012 and 2013.

6

5. The applicant's sentence having being adjourned on a number of occasions, he was subsequently sentenced by His Honour Judge Hunt on 17 th June, 2013, to two years detention with the final twelve months suspended on certain conditions. These conditions included requirements that the applicant enter into a bond in the sum of €150, that he enter into twelve months post release probation supervision, comply with all probation directions and reside with his mother at a particular address in Dublin and abide by a curfew between the hours of 7.00 pm and 7.00 am.

7

6. It appears that Judge Hunt envisaged that the applicant should be placed in Oberstown rather than St.Patrick's Institution and the activation of the sentence was then deferred until a suitable place had become available for the applicant. On the 9 th July 2013 Her Honour Judge Ryan activated the sentence on being informed that a place at Oberstown was now available. She gave the applicant credit for the periods of time in which he already spent in custody.

8

7. 'I'he applicant was accordingly...

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