C (A Minor) v The Governor of Oberstown Children Detention Campus

JurisdictionIreland
JudgeMs. Justice Isobel Kennedy
Judgment Date26 January 2023
Neutral Citation[2023] IECA 36
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 2021/248

In the Matter of an Enquiry Pursuant to Article 40.4.2° of the Constitution

Between/
C (A Minor)
Applicant/Respondent
and
The Governor of Oberstown Children Detention Campus
Respondent/Appellant

[2023] IECA 36

McCarthy J.

Kennedy J.

Donnelly J.

Record Number: 2021/248

THE COURT OF APPEAL

Bail – Release – Bail Act 1997 s. 5(4) – Appellant appealing against the order of the High Court directing the release of the respondent pursuant to Article 40.4.2 of the Constitution – Whether the trial judge erred in law in finding that the District Court had no power in fixing terms of appeal bail relating to a juvenile which included a requirement that an adult independent surety lodge cash

Facts: The respondent, on the 21st September 2021, pleaded guilty to several offences before Trim District Court and was sentenced to four months’ detention at Oberstown Children Detention Campus. The District Court fixed recognisance in the respondent’s own bond of €25 and an independent surety of €300 with €150 cash to be lodged. On the 22nd September 2021, the respondent challenged the legality of his detention pursuant to Article 40.4.2 of the Constitution on the basis that the requirement for the independent surety to lodge €150 in cash was precluded by virtue of s. 5(4) of the Bail Act 1997, as amended. It was argued that the District Court had no power to fix recognisance relating to a juvenile offender which included the requirement that an adult independent surety lodge a sum in cash. The High Court (Heslin J) agreed with the submission and directed the release of the respondent. The respondent appealed his sentence which was listed for the 8th November 2022 in Trim Circuit Court. The appellant, the Governor of Oberstown Children Detention Campus, appealed to the Court of Appeal against the order of the High Court of the 22nd September 2021 directing the release of the respondent pursuant to Article 40.4.2 of the Constitution on the ground that the trial judge erred in law in finding that the District Court had no power in fixing terms of appeal bail relating to a juvenile which included a requirement that an adult independent surety lodge cash. The appellant would not seek the reincarceration of the respondent if successful. The appellant submitted that the trial judge erred in directing the release of the respondent as the power to require a surety and a cash lodgement derives from the common law and not from s. 5 of the 1997 Act. It was the appellant’s position that s. 5 of the 1997 Act simply provides for the lodgement of one third cash at the discretion of the court and the mechanism for sureties in lieu, and therefore had no application to the respondent.

Held by Kennedy J that the common law permits of broad powers concerning bail and the terms thereof, however, the payment of a portion of monies into court as a condition of release is entirely governed by statute. Kennedy J noted that s. 5 of the 1997 Act sets out that an additional requirement to lodge a portion of funds may be ordered, but s. 5(4) expressly states that this does not to apply to persons under the age of 18 years. Kennedy J held that the terms of the section disapplying such orders in respect of minors, and the common law power to so order in connection with minors did not survive the enactment of s. 5(4) of the 1997 Act.

Kennedy J found no error in the order of the High Court and dismissed the appeal.

Appeal dismissed.

JUDGMENT delivered on the 26th day of January 2023 by Ms. Justice Isobel Kennedy.

1

This is an appeal brought by the Governor of Oberstown Children Detention Campus against the order of the High Court (Heslin J.) of the 22nd September 2021, directing the release of the respondent pursuant to Article 40.4.2 of the Constitution. I am satisfied that there was no error in the decision of the High Court for reasons which will become clear in this judgment.

Background
2

On the 21st September 2021, the respondent pleaded guilty to several offences before Trim District Court and was sentenced to four months' detention at Oberstown Children Detention Campus. The District Court fixed recognisance in the respondent's own bond of €25 and an independent surety of €300 with €150 cash to be lodged. The requirement to lodge €150 cash is the issue in this appeal.

3

On the 22nd September 2021, the respondent challenged the legality of his detention pursuant to A.40.4.2 of the Constitution on the basis that the requirement for the independent surety to lodge €150 in cash was precluded by virtue of s. 5(4) of the Bail Act 1997, as amended, (hereafter ‘the 1997 Act’). It was argued that the District Court had no power to fix recognisance relating to a juvenile offender which included the requirement that an adult independent surety lodge a sum in cash. The High Court (Heslin J.) agreed with the submission and directed the release of the respondent.

4

The respondent has appealed his sentence which was listed for the 8th November 2022 in Trim Circuit Court. Two grounds of appeal were filed but the appellant relies only on ground 1:

“The learned Trial Judge erred in law in finding that the District Court had no power in fixing terms of appeal bail relating to a juvenile which included a requirement that an adult independent surety lodge cash.”

5

The appellant will not seek the reincarceration of the respondent if successful.

The Lough Swilly Jurisprudence
6

Initially, three issues arose in this appeal: 1. Whether a court can impose sureties on children, however, it is accepted by the parties that the real issue concerns the condition requiring a lodgement of a portion of the independent surety. 2. Whether the appeal is moot and 3. Whether the Director is precluded from making arguments as a result of the Lough Swilly Shellfish Growers Co-Operative Society Ltd v Bradley & Ivers [2013] 1 IR 227 case.

7

However, as the appeal progressed, the issue of mootness substantially fell away in that, while the appellant acknowledged that the case is moot, the argument was made that the issue has such systemic importance and relevance that the Court should entertain it. In that regard, the respondent contended that it is a matter for this Court to assess whether the high threshold for entertaining a moot appeal has been met but accepted that the issue to be resolved has systemic importance.

8

I am satisfied to determine the substantive issue as the decision of the High Court has the potential to impact on the jurisdiction of the District Court as to whether or not to impose a requirement for monies to be paid into court pending appeal in the case of juveniles. This decision may have an impact on many criminal cases before the District Court and, as it is mandatory to fix recognisance pending appeal in terms of Order 101, Rule 4 of the District Court Rules, it is a matter which will regularly fall for consideration by the District Court.

9

This judgment is primarily confined to the substantive issue and to a lesser degree the impact of the Lough Swilly line of jurisprudence.

Submissions of the Appellant
10

The appellant relies on the “ancient and most fundamental” jurisdiction of a court to grant bail citing Maguire v DPP [2004] 3 IR 241. Section 31 of the Criminal Procedure Act, 1967 (as amended) governs the release of a person who is in garda custody on station bail by the Gardaí with or without sureties. Section 68 of the Children Act, 2001 (as amended by s. 21 of the Criminal Justice Act, 2007) provides for the admittance of a child to station bail by the Gardaí and the taking of a recognisance. Section 68 of the 2001 Act also explicitly provides for cash lodgements being taken and transmitted to court and s. 22 of the 1967 Act empowers a court to remand an accused (child or adult) on bail with sureties where remanding an accused on bail or sending him forward for trial. This section does not apply to recognisances pending appeal.

11

Order 101, Rule 4 sets out the position concerning recognisances pending appeal. The appellant relies on Croake v Coughlan [2017] IECA 65, in which Hogan J. accepted that the power to require sureties emanated from the District Court Rules.

12

Section 5 of the 1997 Act initially introduced a requirement that when granting bail, one third of the amount would have to be lodged in cash. Subsection (2) provides for a surety to be accepted in lieu. Section 33 of the Courts and Courts Officers Act, 2002 Act gave a discretion to courts to require the one-third lodgement (or a greater sum). Section 89 of the Children Act, 2001 inserted subsection (4) which removed the obligation in relation to children as follows “this section shall not apply in relation to a person under the age of 18 years.”

13

While the respondent argues that the effect of s. 5(4) of the 1997 Act is such that the court cannot require a surety to lodge a portion of an independent surety in the case of a child, the appellant submits that this argument is based on the premise that s. 5 of the 1997 Act provides the basis upon which a court can require a cash lodgement and sureties. However, it is the appellant's position that this power derives from the common law and further, that s. 5 does not amount to a codification on the law of cash and sureties in relation to bail as, if it did, then bail could not be granted to a child accused at all.

14

In this regard, the appellant cites O'Connor v McDonnell [2002] IEHC 97 which concerned a District Court Judge who had held that s. 5(4) prohibited him from considering bail at all for a child. Ó'Caiomh J held that the District Court enjoyed this jurisdiction and granted an order of mandamus compelling the District Court to consider bail stating:

“This was a new provision in the bail law enacted in 1997 and the fact that it does not apply to minors by virtue of the Act of 2001 is such that the District Court is not deprived of jurisdiction...

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