Declan Corcoran v Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Peter Charleton
• Judgment Date: 14 November 2024
• Neutral Citation: [2024] IESC 52
• Docket Number: Supreme Court record: S:AP:IE:2024:00022; S:AP:IE:2024:00021; S:AP:IE:2024:00023 Court of Appeal record: 2022/229; 2022/228; 2022/230

Between

Declan Corcoran

Edel Doherty

Kyle Rooney

Applicants/Appellants

and

The People (at the suit of the Director of Public Prosecutions),

Prosecutor/Respondent

The Attorney General

Notice Party

[2024] IESC 52

Dunne J

Charleton J

O'Malley J

Woulfe J

Hogan J

Supreme Court record: S:AP:IE:2024:00022; S:AP:IE:2024:00021; S:AP:IE:2024:00023 Court of Appeal record: 2022/229; 2022/228; 2022/230

High Court record: 2021/110 JR; 2021/154 JR; 2020/982 JR

An Chúirt Uachtarach

The Supreme Court

Summary trial – Jurisdiction – Trial by jury – Respondent seeking jurisdiction to try the appellants summarily – Whether a judge in the District Court, whose colleague had already ruled that an offence is minor and thus fit to be tried summarily, reconsider the nature of the offence of his or her own motion and, instead, refuse jurisdiction, thus sending the case for trial by jury to the Circuit Court

Facts: In June 2019, two juveniles were convicted of murder before the Central Criminal Court. The restrictions set out in s. 252 and 51(3) of the Children Act 2001 applied to them, the prosecution contended. In consequence of the legislation, apart from any order of the trial judge, no one could legally identify those tried and convicted. Section 51 provides for a penalty on conviction. The offence is triable either way, summarily or on indictment, and the consent of the respondent, the Director of Public Prosecutions, is required for summary disposal. The penalty section reinforces the prohibition, it was contended in the proposed prosecution, subject to the trial judge acting to reveal names in the interests of justice. The allegation against the appellants, Mr Corcoran, Ms Doherty and Mr Rooney, was that on social media they identified the two juvenile convicts in a manner which constituted an infringement of the legislation. The High Court ([2022] IEHC 435), quashed the District Court orders refusing jurisdiction to try the appellants summarily. That order was reversed by the Court of Appeal ([2023] IECA 315). The reasoning was based on the basis that where there is a decision by a judge in the District Court on first hearing an outline of the case to accept jurisdiction, another judge actually disposing by way of sentence of that case, or on hearing the actual trial following a not guilty plea, may, or under the Constitution, must, take a different view if the gravity of the circumstances are such that a jury disposal is required. Leave to further appeal was granted by the Supreme Court on 30 April 2024 ([2024] IESCDET 47), on the general issue as to the proper application of Articles 38.1 and 38.2 of the Constitution to the taxonomy and disposal of offences at a summary level and on indictment.

Held by the Supreme Court that the District Court was entitled to conclude that the offences in question were not minor in character for the purposes of Article 38.2. The Supreme Court held that the District Court had jurisdiction to so conclude because it had been called upon to make a decision as to how long each of these cases would take and what amount of time on what dates might be assigned to each case. The Supreme Court held that the District Court could not have made such a decision - even on a preliminary or provisional basis - without knowing whether the District Court had jurisdiction in the first place. Accordingly, the Supreme Court held that it was necessary for the District Court to make such a determination at that point; this it did and it had not been otherwise suggested that it was not entitled to conclude that the offences were not minor in character. The Supreme Court held that all of this meant that the District Court was entitled to decline jurisdiction in these cases.

The Court dismissed the appeal.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton, delivered on Thursday 14 November 2024

1 Can a judge in the District Court, whose colleague has already ruled that an offence is minor and thus fit to be tried summarily, that is without a jury, reconsider the nature of the offence of his or her own motion and, instead, refuse jurisdiction, thus sending the case for trial by jury to the Circuit Court? This is the principal issue which arises on this appeal. The charges in question which the second District judge regarded as non-minor concern the alleged breach of an order of the Central Criminal Court that children on trial for murder should not be identified.

2 Excepting minor offences being tried in a court of summary jurisdiction, special courts trying offences where the ordinary courts “are inadequate to secure the effective administration of justice and the preservation of public peace and order”, and military tribunals having jurisdiction over offences against military law and in times of war or armed rebellion, the Constitution provides at Article 38.5 that “no person shall be tried on any criminal charge without a jury.” At common law, all offences were triable by jury, prior to the creation by statute of a magistrates court. As offences became triable either by jury or by judge, legislation establishing new offences, or revising the mode of trial of existing crimes, provided for trial either summarily or by jury. Summary trial became possible on the proviso that, variously, the accused or the Director of Public Prosecutions consented to forego jury trial and the judge, on hearing a summary of the facts, decided that the offence was one where a jury trial was not required.

3 Essentially, save for the special categories of Special Criminal Court (Article 38.3) or persons subject to military law (Article 38.4) the Constitution is imperative that where an offence is not minor in nature, there must be a jury trial.

Events before the District Court

4 The cases of the applicants are essentially the same. There were originally a dozen or more people charged with the same offence of breach of s 252(1), (4) and 51(3) of the Children Act 2001, of which 10 were involved in this judicial review, these cases being taken as representative and binding as to result. On the charges being mentioned on 28 October 2020 in the District Court, Judge Brian O'Shea heard an outline of the facts and ruled: “I'm going to accept jurisdiction. I am satisfied that it's a matter that can be dealt with in this court within the sentencing regime of this court.” The order of the court, dated 10 March 2022, notes: “Judge Brian O'Shea accepted jurisdiction + case adjourned to 2/12/2020 for plea or date [of trial]”. On that latter date, the order of the court records: “Judge John Hughes refused jurisdiction + cases adjourned to 20/1/2021 for D.P.P directions”. The task of Judge Hughes on that second day was, if appropriate, to accept any pleas of guilty that were forthcoming and for those seeking a trial to find a date for hearing or to put the matter in for management of what was quite an unwieldy group of cases.

5 Judge Hughes stated he was embarking on an “exercise of considering jurisdiction”, noting that this had previously been accepted and that the Director of Public Prosecutions had consented to summary disposal. He recited that, on summary conviction the penalty was 12 months imprisonment maximum and/or a fine while on indictment that fine increased and as did the term of imprisonment to 3 years. Stating that he had considered “a broad outline of the facts”, he ruled that the offences were not “minor in nature and are unfit for trial in the District Court summarily … I am refusing jurisdiction and I am adjourning these cases to …”

6 These applicants then applied for leave to commence judicial review of the decision of Judge Hughes. That leave was granted on 1 March 2021 by Hyland J for the applicant Declan Corcoran, leave was granted for the applicant Edel Doherty on 1 March 2021 by Meenan J, and leave was granted for the applicant Kyle Rooney on 25 January 2021 by Simons J. The trial of the judicial review was decided by Phelan J on 8 July 2022.

Facts

7 In June 2019 two juveniles were convicted of murder before the Central Criminal Court, McDermott J presiding. The restrictions set out in s 252 and 51(3) of the Children Act 2001 applied to them, the prosecution contend, but that restriction was expressly stated in open court by McDermott J. In consequence of the legislation, apart from any order of the trial judge, no one could legally identify those tried and convicted. Section 93 may also be a relevant provision. Section 51 of that Act provides for a penalty on conviction, as noted by Judge Hughes. The offence is triable either way, summarily or on indictment, and the consent of the Director of Public Prosecutions is required for summary disposal.

8 The penalty section reinforces the prohibition, it is contended in the proposed prosecution, subject to the trial judge acting to reveal names in the interests of justice, and provides:

51. (1) Subject to subsection (2), no report shall be published or included in a broadcast—

(a) in relation to the admission of a child to the Programme or the proceedings at any conference relating to the child, including the contents of any action plan for the child and of the report of the conference, or

(b) which reveals the name, address or school of the child or any other information, including any picture, which is likely to lead to identification of the child.

(2) Subsection (1) does not apply to the publication or broadcast of—

(a) statistical information relating to the Programme, and

(b) the results of any bona fide research relating to it.

(3) If any matter is published or broadcast in contravention of subsection (1), each of the following persons, namely—

(a) in the case of publication of the matter in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

(b) in the case of any other such publication, the person who publishes it, and

(c) in the case...