DPP v O'F
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 11 July 2022 |
| Neutral Citation | [2022] IEHC 462 |
| Court | High Court |
| Docket Number | [Record No. 2021/1677SS] |
In the Matter of the Case Stated Pursuant to Section 52 of the Courts (Supplemental Provisions) Act 1961
[Record No. 2021/1677SS]
THE HIGH COURT
Case stated – Previous convictions – Children Act 2001 s. 75 – District Judge stating a case – Whether s. 75 of the Children Act 2001 permits the Children Court to take account of previous convictions of an accused in determining whether to try or deal with a child charged with an indictable offence where the prosecutor has not directed or consented to summary disposal
Facts: The defendant was born on 26 December 2004 and would reach his majority in December 2022. He was charged before the courts with an offence of violent disorder which occurred on 17 November 2020. On 8 July 2021, the prosecutor, the Director of Public Prosecutions (the DPP), recommended trial by indictment and because of that the provisions of s. 75 of the Children Act 2001 were engaged. The defendant was first before the District Court on 19 December 2020. The matter came before the High Court by way of case stated from the District Judge pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961. A notice of the prepared case statement was given on 30 November 2021, the case stated proper being on 29 November 2021. In the case stated, at para. 56 the questions posed were: (1) Does s. 75 of the 2001 Act permit the Children Court to take account of previous convictions of an accused in determining whether to try or deal with a child charged with an indictable offence where the DPP has not directed or consented to summary disposal? (2) If the answer to (1) is yes, can the Children Court request that the DPP furnish it with details of previous convictions of an accused? (3) If the answer to (2) is yes, is it within the discretion of the DPP to refuse such a request?
Held by the Court that the case law demonstrated that once there is an intention to plead guilty advised to the Court, or once a guilty plea has been made, then the presumption of innocence ceases and it is possible then to look at prior convictions. The Court held that, in the instant matter, it was not a guilty plea, it was not a not guilty plea, it was not a plea of intention to plead guilty, but rather a plea where it was intended to plead guilty contingent on the District Court retaining jurisdiction; it was stated in the Court’s case stated that the submission that the presumption of innocence continued to apply to the instant accused had been accepted by the Court. The Court held that, in circumstances where the presumption of innocence continued to prevail, the case law identified by the parties demonstrated that for as long as that presumption continues, the constitutional requirement not to effectively contaminate the position or prejudice the accused by referring to previous convictions holds firm. The Court held that it would only be in circumstances where the accused has pleaded guilty or given an intention to plead guilty which is not a contingent, that the presumption of innocence would lapse and it would be permissible to take account of prior convictions in a determination as to the proper jurisdiction.
The Court held that the answer to the question posed by the District Judge, namely, “does s. 75 of the 2001 Act permit the Court to take account of previous convictions of an accused in determining whether to try or deal with a child charged with an indictable offence, where the DPP has not directed or consented to summary disposal?”, would have to be “no” in the circumstances as presented in the case stated. The Court held that the two other questions raised were contingent on an answer to question (1) being in the affirmative rather than the negative.
Case stated.
JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 11th day of July, 2022.
This matter comes before the Court by way of case stated from Judge Brendan Toale in the District Court pursuant to s.52(1) of the Courts (Supplemental Provisions) Act 1961. A notice of the prepared case statement was given on 30 November 2021, the case stated proper being on 29 November 2021.
The accused was born on 26 December 2004 and will reach his majority this December 2022. He is charged before the courts with an offence of violent disorder which occurred on 17 November 2020. On 8 July 2021 the DPP recommended trial by indictment and because of that the provisions of s.75 of the Children Act 2001 (the 2001 Act) were engaged. The accused was first before the District Court on 19 December 2020.
In the case stated of the District Judge, at para. 56 the questions posed are:
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(1) Does s.75 of the Children Act 2001 permit the Children Court to take account of previous convictions of an accused in determining whether to try or deal with a child charged with an indictable offence where the DPP has not directed or consented to summary disposal?
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(2) If the answer to (1) is yes, can the Children Court request that the DPP furnish it with details of previous convictions of an accused?
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(3) If the answer to (2) is yes, is it within the discretion of the DPP to refuse such a request?
By way of initial comment, it is suggested that these are general questions posed of the District Judge to this Court and so a general response is required. In fact, as interpreted by the courts the opinion or advice of the High Court is to enable the District Judge to deal with the matter before him (see DPP v Buckley [2007] IEHC 150). In a very carefully constructed case stated the details of the instant offence were set out and it appears to me that the response or the advisory to be furnished is in the context of the facts so presented.
In respect of those facts at para. 9 of the case stated it is mentioned that the accused's solicitor stated that the accused was “offering a plea of guilty”. At para. 32 of the case stated it is recorded that the defence submissions state as follows:
“In the within case the accused has indicated a plea of guilty should the matters be retained in the District Court. This fact in and of itself does not mean that the accused has waived his presumption of innocence. The indication of a plea is conditional on the acceptance of jurisdiction. Section 75 of the 2001 Act provides for a preliminary procedure which is engaged in prior to any finding of guilt being made. The accused has not yet entered a plea and thus retains his presumption of innocence.”
Thereafter the Judge goes on to state that:
“For the purposes of this case, the Court accepts the submission. It is the practice of this Court to proceed in this way when a child indicates that he, in the words of section 75, ‘wishes to plead guilty’”.
In my view, it is clear that the understanding of the Judge when presenting the case stated was to the effect that the plea indication was a conditional indication which is an entirely different matter to either pleading not guilty, guilty, or an intention to plead guilty.
Section 75 (1) of the Children Act 2001 provides that:
“… the Court may deal summarily with a child charged with any indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, unless the Court is of opinion that the offence does not constitute a minor offence fit to be tried summarily or, where the child wishes to plead guilty, to be dealt with summarily.”
In sub. (2) it is stated that:
“In deciding whether to try or deal with a child summarily for an indictable offence, the Court shall also take account of—
(a) the age and level of maturity of the child concerned, and
(b) any other facts that it considers relevant.”
The section goes on to state that a case can only be dealt with summarily with the child's consent. There is provision for assistance for the child when making a decision and under sub. 7(a) it is provided that “Where a child is sent forward for sentence under this section, he or she may withdraw the written plea and plead not guilty to the charge.”
It appears to me from the submissions made and the details furnished that there are two significant cases, however, before I address those cases I will first refer to a number of other cases raised.
In DPP v. The Dublin Metropolitan District Court [2021] IEHC 705, a judgment of Ferriter J., it was held that under s.75(2)(b) the District Judge is entitled to take into account the fact that the accused is being charged with a second offence arising from the same facts.
In DPP v. Hannaway & Ors. [2021] IESC 31, a judgment of O'Malley J., it is stated that in interpretating the provisions of the statute it is necessary to consider the scheme of the Act as a whole to give a harmonious interpretation.
In DPP v. Farrell [1978] IR 13, a judgment of O'Higgins C.J. in the Supreme Court, it was said that when dealing with the ejusdem generis rule:
“It would not, however, in the Court's View, be proper to regard a vehicle as a convenient place. The application of the eiusdem (sic) generis rule of construction would indicate that the general term “other convenient place” ought to be construed in the same sense as the specifics, a Garda station or a prison and at least must mean a convenient building of some kind.”
In LE v. DPP [2019] IEHC 471, Simons J. stated that when the Oireachtas makes an express provision for one situation and not another (under eighteen and over eighteen), weight should be given to this legislative preference.
In State (O'Hagan) v. Delap [1982] IR 213, O'Hanlon J. stated that where there was an indication of an intention to plead guilty, the presumption of innocence ceased to apply once that indication was given. In those circumstances there was no threat to the presumption.
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