D (J) v Judge Connellan & Judge Malone and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Murphy
Judgment Date27 June 2003
Neutral Citation[2003] IEHC 39
Date27 June 2003
Docket Number[No. 310 J.R./2001]

[2003] IEHC 39

THE HIGH COURT

[No. 310 J.R./2001]
[No. 368 J.R./2001]
D (J) v. JUDGE CONNELLAN & JUDGE MALONE & ORS
JUDICIAL REVIEW

BETWEEN

JD (A MINOR) SUING BY HIS GRANDMOTHER AND NEXT FRIEND BD
APPLICANT

AND

JUDGE MICHAEL CONNELLAN, THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

AND

JUDICIAL REVIEW

BETWEEN

JD (A MINOR) SUING BY HIS GRANDMOTHER AND NEXT FRIEND BD
APPLICANT

AND

JUDGE MIRIAM MALONE, THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Citations:

CHILDREN ACT 1908 S97(1)

CHILDREN ACT 1908 S102(3)

CONSTITUTION ART 50.1

HANLEY, STATE V GOVERNOR OF MOUNTJOY PRISON 1974 108 ILT 102

CONSTITUTION ART 40.4

CHILDREN ACT 1908 S97

CHILDREN ACT 1908 ADOPTION ORDER 1928 ORDER 8/1928

CHILDREN ACT 1908 S69(3)

CHILDREN ACT 1908 S87(1)

CHILDREN ACT 1908 S1(33)

PLACES OF DETENTION (STATE CONTRIBUTIONS) REGS 1928

CHILDREN ACT 1908 S110(2)

ADAPTATION OF THE ENACTMENTS ACT 1922

CRIMINAL JUSTICE ACT 1960 S13

CONSTITUTION ART 40.3

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 3

SHEERIN, STATE V KENNEDY 1966 IR 379

FINNEY V SUPERINTENDENT BALLYMUN GARDA STATION 1991 1 IR 189

N (F) V MIN FOR EDUCATION 1995 1 IR 409

ADOPTION NO 2 BILL 1987 1989 IR 656

CONSTITUTION ART 42.5

DPP V THORNTON 1999 3 IR 254 1998/16/6157

GUARDIANSHIP OF INFANTS ACT 1964 S3

GREEN V GOVERNOR OF MOUNTJOY PRISON 1995 3 IR 541

CHILDREN ACT 2001

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 5

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 6

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 5(1)(A)

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 5(1)(D)

BOUAMER V BELGIUM 1989 11 EHRR 1

D(G) V IRELAND 2002 35 EHRR 33

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.2

NORRIS V AG 1984 IR 36

AG V PAPERLINK LTD 1984 ILRM 373

KELLY ON THE IRISH CONSTITUTION 3ED 466–467

CONSTITUTION ART 40.4.2

O LAIGHLEIS, IN RE 1960 IR 93

DOYLE V CMSR OF AN GARDA SIOCHANA 1999 1 IR 249

ADAM V MIN JUSTICE 2001 3 IR 53

G (J) V GOVERNOR OF MOUNTJOY PRISON 1991 1 IR 373

HOLLAND, STATE V KENNEDY 1977 IR 193

O'DONOGHUE, STATE V KENNEDY 1979 ILRM 109

IRISH TRUST BANK LTD V CENTRAL BANK OF IRELAND 1976–77 ILRM 50

FLAHERTY V DIRECTOR OBERSTOWN GIRLS CENTRE UNREP SUPREME 15.3.1994 1994/3/701

GOODEN V WATERFORD REGIONAL HOSPITAL UNREP SUPREME 21.2.2001 2001/11/2896

CHILDREN ACT 1908 S102

Synopsis:

JUDICIAL REVIEW

Certiorari

Declaration - Minors - Detention - Places of detention - Whether minor lawfully detained in prison when certified to be unruly - Whether committal warrants ought to be quashed - Whether pre-1922 statute carried forward by virtue of Bunreacht na h?ireann - Children Act 1908, sections 97 and 102 - Bunreacht na hEireann, Articles 40.3 and 50.1 (2001/310JR - Murphy J - 27/6/2003) - [2004] 1 ILRM 202

D (J) (a minor) v Connellan

the applicant had been convicted and sentenced to imprisonment in Mountjoy prison after the first respondent in second set of proceedings had certified that St. Patrick’s Institution was unsuitable, the applicant being of so unruly a character. He had previously been remanded in Mountjoy by the first respondent in the first set of proceedings after a similar finding as to his character. The applicant applied to the High Court for orders quashing the orders of the first respondents in both proceedings, arguing that sections 97 and 102 of the Children Act 1908 violated the principal right to personal liberty of a child by unjustifiably subjecting the child to the regime of an adult penal institution without special treatment. The applicant also submitted that those provisions of the Act of 1908 had not been carried forward by virtue of Article 50.1 of Bunreacht na hÉireann.

Held by Murphy J in rejecting the application that the constitutional duty to consider and promote the welfare of a child had to be balanced and harmonised with the other constitutional rights pertaining to the accused in a criminal trial. The primacy of the welfare of a child with relation to the custody, guardianship and upbringing of an infant could not be carried over to apply to criminal proceedings. The issue of the constitutionality of section 102 of the Act of 1908 had already been determined by the High Court as not representing an unjust attack on the applicant’s constitutional rights and there was no evidential basis for departing from the earlier decisions. The principles relative to the determination of that section were equally applicable to section 97 of the Act. The provisions of the Children Act 2001 had no application to the proceedings as it referred to welfare proceedings and not to criminal proceedings and, in any event, had not been brought into force.

Mr. Justice Murphy
21.Background
1

The applicant was born on the 20th December, 1985 and was at the material time a fifteen year old boy with a significant history of personal and family difficulties. On the 10th May, 2001, he was remanded in custody in Mountjoy Prison, an adult penal institution, by Judge Michael Connellan having been certified as unruly, pursuant to s. 97 (1) of the Children Act, 1908. On the 24th May, 2001, he was sentenced to one month's imprisonment in Mountjoy Prison by Judge Miriam Malone having been certified as unruly, pursuant to s. 102 (3) of the Children Act, 1908.

2

The remand and imprisonment was in respect of an unauthorised taking on 10th May, 2001. It appears from the affidavit of John Quinn, Solicitor for the applicants that there was no room in Trinity House.

3

Mr. Durcan, S.C. for the applicant argued that the relevant sections of the Children Act, 1908 are unconstitutional.

4

Mr. Paul O'Higgins, S.C. for the respondents submitted that the matter was moot andres judicata and beyond the scope of the leave given.

2.Pleadings.
5

Similar notices of motion returnable for the 31st July, 2002, in respect of each case sought the following orders:

6

1. An order ofcertiorari by way of application for judicial review quashing the committal warrant holding the applicant at Mountjoy Prison and dated the 10th May, 2001, issued by Judge Connellan and dated the 14th May, 2001, issued by Judge Malone in the respective proceedings.

7

2. A declaration by way of judicial review that s. 97 (1) (in the first case) and s. 102 (3) of the Children Act, 1908 was not carried forward by Article 50.1 of the Constitution of Ireland 1937 and in particular that each part of the section which reads (in both cases) as follows:

"Provided that in the case of a young person it shall not be obligatory on the court so to commit him if the court certifies that he is of so unruly a character that he cannot be safely so committed, or that he is of so depraved a character that he is not a fit person to be so detained".

8

Both applications were grounded on the respective statements to ground the application for leave to apply for judicial review dated the 14th May, 2001 and the 12th July, 2001, respectively, the order of Mr. Justice Finnegan perfected on the 12th July, 2001, in respect of both applications, the nature of the case and the reasons to be offered.

3.Affidavits
9

3.1 The grounding affidavit of John Quinn in the first case referred to the applicant's appearance before Judge Connellan and in the Children's Court on 10th May, 2001, in respect of a charge of an unauthorised taking of a motorcar. The State applied to have the applicant certified unruly and to be detained in Mountjoy Prison. Evidence was heard from Mr. Michael Donnellan and Mr. Declan Enright from Trinity House in respect of an incident in which the applicant's bedroom was damaged on Thursday 3rd May, and that there was currently no remand places available in Trinity House.

10

The deponent, as solicitor for the applicant, submitted that there was no evidence of any remand place actually in existence as set out inThe State (Hanly) v. Governor of Mountjoy Prison and District Justice Breathnach CVIII I.L.T. 102. Judge Connellan asked that inquiries be made of Oberstown and St. Michael's. While initially it was indicated that there were no remand places available in either institution, a place was made available in St. Michael's Remand and Assessment Unit. Judge Connellan made an order remanding the applicant in custody to Mountjoy Prison, having certified him"unruly".

11

The deponent also referred to an Article 40.4 application being made on behalf of the applicant in relation to his then current detention.

12

3.2 In the second case, Mr. Quinn referred to the appearance before Judge Miriam Malone in the Children's Court on 24thMay, 2001. The applicant pleaded guilty to the charges. Judge Malone indicated that she intended sentencing the applicant to one month in Trinity House. She heard evidence from Mrs. Gertie Rafferty and Mr. Declan Enright of Trinity House and made an order certifying the applicant "unruly" and sentencing the applicant to one month in Mountjoy Prison.

4.Committal Warrants
13

4.1 The committal warrant (remand) signed by Judge Connellan on 10th May, 2001, stated as follows:

14

1. And WHEREAS I have certified that the said-Accused/Defendant to be of so unruly a character that he cannot be safely detained in a Place of Detention at Trinity House or St. Michael's Assessment Centre.

15

2. THIS IS TO COMMAND YOU to whom this warrant is addressed to keep the accused in Mountjoy Prison Dublin, under s. 97 of the 1908 Children Act, there to be detained by the Governor thereof until the above time of adjournment (being a period not exceeding eight days from the date hereof) when you shall have him in the said sitting to be further dealt with according to law. He was so unruly in that he cannot be committed to Trinity House.

16...

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