DPP (Murphy) v PT

• Jurisdiction: Ireland
• Judgment Date: 01 January 1999
• Date: 01 January 1999
• Docket Number: [1997 No. 1061 S.S.]
• Court: High Court

High Court

[1997 No. 1061 S.S.]

Director of Public Prosecutions (Murphy) v. P.T.

The Director of Public Prosecutions (at the suit of Garda Eugene Murphy)

Prosecutor

and

P.T.

Accused

Case mentioned in this report:-

The Attorney General v. X [1992] 1 I.R. 1; [1992] I.L.R.M. 401.

M.F. v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189; [1990] I.L.R.M. 767.

G. v. An Bord Uchtála [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

O'C. v. Judges of the Dublin Metropolitan District [1994] 3 I.R. 246.

The Queen v. Berry (1876) 1 Q.B.D. 447.

Rex v. Dyson 7 C. & P. 305n.

Rex v. Governor of Stafford Prison [1909] 2 K.B. 81.

Rex v. Pritchard 7 C. & P. 303.

The State (C.) v. Minister for Justice [1967] I.R. 106; (1967) 102 I.L.T.R. 177.

Stephens v. Eastern Health Board (Unreported, High Court, Geoghegan J., 27th July, 1994).

Criminal law - Minor accused - Fit person order - Whether Health Board bound to attend court and comply with order to take all steps necessary to inquire into condition and capacity of accused to stand trial.

Criminal law - Fitness to plead - Whether District Judge entitled to raise issue of his own motion.

Words and phrases - "Guardian" - Children Act, 1908 (8 Edw. VII, c. 67), s. 131.

Consultative case stated.

The facts have been summarised in the headnote and are fully set out in the judgment of McGuinness J., infra.

The District Judge signed the case stated on the 30th June, 1997. The matter came on for hearing in the High Court (McGuinness J.) on the 24th July, 1997. McGuinness J. delivered a preliminary judgment on the 30th June, 1997 and a reserved judgment on the 24th September, 1997.

The accused, a minor and the subject of a fit person order pursuant to s. 58 (1) (b) of the Children Act, 1908, lived in accommodation provided by the Board. At his trial for a number of offences under the Larceny Acts, evidence was furnished that he suffered from,inter alia, a high level of autism and mild mental handicap. Forming the view that the care plan put in place by the board was "seriously deficient" and that the accused was in "grave danger" of being criminalised for delinquent behaviour, the District Judge, adjourned the matter, remanded the accused in custody pending trial and ordered the board:-

"… to submit its proposals to the court for a secure residential assessment … to confirm a preliminary diagnosis of Aspergers Syndrome, (or such other diagnosis as may be warranted), and thereafter a care programme while he continues in the care of the Eastern Health Board and if necessary, such assessment carried on outside [the jurisdiction] of the courts . . ."

At the adjourned hearing, the issue of the accused's fitness to plead was raised by the District Judge. Counsel on behalf of the Board submitted that the District Court did not have the jurisdiction to make child care directions in the course of the criminal prosecution of a minor and that it did not intend to submit to the order of the court.

The District Judge stated a case in the following terms:-

"In the light of the fundamental challenge by the Eastern Health Board to the discharge of its constitutional obligation to take all necessary steps for the conduct of a sworn inquiry as to the condition and capacity of this accused, and having regard to the refusal by the Eastern Health Board to submit to the order made by this Court on the 11th April, 1997, I determined to submit a consultative case stated for the High Court on the following questions of law:

• (a) Whether I was entitled in law to make the order of the 11th April, 1997? and

• (b) Whether the Eastern Health Board was obliged in law to comply with the order of the 11th April, 1997?"

Held by the High Court (McGuinness J.), in answering the case stated, 1, that it was clearly open to the District Judge to raise the issue of the fitness to plead of the accused of his own motion.

The State (C.) v. Minister for Justice [1967] I.R. 106;O'C. v. Judges of the Metropolitan District[1994] 3 I.R. 246, applied.Rex v. Dyson 7 C.& P. 305n;Rex v. Governor of Stafford Prison[1909] 2 K.B. 81;Rex v. Pritchard 7 C.& P. 303;The Queen v. Berry(1876) 1 Q.B.D. 447, followed.

2. That the Board was a guardian of the accused under s. 131 of the Children Act, 1908 and the District Court might require the Board to attend before it at all stages of the proceedings against the accused and the court had the power under s. 98 of the Act of 1908 to make orders binding upon the Board only insofar as they would assist the court in its inquiry into whether the accused was fit to plead and therefore capable of following proceedings and instructing his legal advisors. The District Judge was not entitled to make an order extending to particular matters of diagnosis and to the provision of a care programme for the accused while he remained in the care of the Board.

3. That the District Court had a general duty to consider and to promote the welfare of the accused and to balance and harmonise this duty with the constitutional rights which pertained to the accused in a criminal trial. Insofar as there was a clash between the general welfare rights and the rights delineated by the Constitution as being relevant to the trial of offences, the latter should have priority and should prevail.

The Attorney General v. X [1992] 1 I.R. 1;Stephens v. Eastern Health Board (Unreported, High Court, Geoghegan J., 27th July, 1994) followed;G. v. An Bord Uchtála[1980] I.R. 32;M.F. v. Superintendent, Ballymun Garda Station[1991] 1 I.R. 189 considered.

4. That the order directing the Eastern Health Board to submit proposals for a "secure residential assessment" and "care programme" went considerably beyond what was required to enable an inquiry into the accused's fitness to plead.

Cur. adv. vult.

McGuinness J. 24th September, 1997

This is a consultative case stated pursuant to s. 52 of the Courts (Supplemental Provisions) Act, 1961, by District Judge James Paul McDonnell, a judge of the District Court assigned to the Dublin Metropolitan District. The case is stated on the court's own motion and arises from criminal proceedings against the accused, P. T., in the Children's Court, Smithfield, in the city of Dublin. The accused was born on the 4th December, 1981, and is now 15 years of age.

The consultative case stated arose from an order made by the District Judge on the 11th April, 1997. The case stated by the District Judge is dated the 30th June, 1997, and the matter came on for hearing before me on the 24th July, 1997. Since the accused had been remanded in custody pending the reply of this court to the questions posed in the case stated, I considered the matter to be one of urgency. Accordingly in a brief ruling given on the 30th July, 1997, I provided replies to the questions posed by the District Judge. However, I considered that the matters of law which were set out by the District Judge and which arise from the case stated by him were of general importance, reaching beyond the factual situation obtaining in the trial of the present accused. I therefore wished to set out in full the reasoning behind, and the context of, the answers given. Accordingly, I reserved such fuller consideration of the matter until today.

The facts set out by the District Judge in the consultative case stated may be summarised as follows:

At a sitting of the Children's Court held at District Court No. 25, Smithfield, in the city of Dublin, on the 4th April, 1997, the accused, P.T., appeared before Judge Clare Leonard to answer the charge of larceny of a sports jacket, valued at £30 from a shop in Henry Street, in the city of Dublin, contrary to s. 2 of the Larceny Act, 1916, as amended, and the alternative charge of handling that property, knowing or believing it to be stolen property, contrary to s. 33 of the Larceny Act, 1916, as amended. The charges were set out on Store Street charge sheet J148 of 1997 and a copy of that charge sheet was attached to the case stated.

At that hearing Judge Clare Leonard established that the accused was aged some 15 years of age and was resident in Tabor House, 70 Seville Place, Dublin 1. The accused was accompanied by a member of staff of Tabor House, but not by any member of his family. No member of the accused's family has been present at any hearing since that date. Judge Leonard granted legal aid to the accused and assigned Mr. Michael Staines, solicitor, to represent the accused. The accused was then remanded upon continuing bail to Court No. 25 on the 11th April, 1997.

On the 11th April, 1997, the accused appeared on the said charges before District Judge James Paul McDonnell. He was again accompanied by a member of the staff of Tabor House. The accused was represented by Ms. Caroline Butler of Messrs. Michael Staines & Co., solicitors. So far as the criminal proceedings were concerned, it appears that evidence of arrest, charge and caution was given, but that to date no further steps have been taken in regard to dealing with the actual charges before the court.

Ms. Sinead Flynn, the member of staff of Tabor House, handed into court a report concerning the accused's placement in Tabor House. The District Judge then ascertained that the accused was, under the name of M.W., the subject of a fit person order made by the Children's Court on the 11th January, 1990, when he was committed to the care of the Eastern Health Board ("the Board"). The fit person order is attached to the case stated. The order was made pursuant to the Children Acts, 1908 to 1989. (While no section is recited on the face of the order, it appears to me from the wording of the order itself that it is made pursuant to s. 58(1)(b) of the Children Act, 1908, as amended - the ground being that he was found having a parent who did not exercise proper guardianship.) The fit person order remains in force until the 3rd December, 1997, unless sooner revoked or varied.

The District Judge...