DPP v Thornton

JurisdictionIreland
JudgeMrs Justice McGuiness
Judgment Date24 September 1997
Neutral Citation[1997] IEHC 153
Judgment citation (vLex)[1997] 9 JIC 2402
Docket NumberNo. 1061ss 1997
CourtHigh Court
Date24 September 1997

[1997] IEHC 153

THE HIGH COURT

No. 1061ss 1997
DPP v. THORNTON
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA EUGENE MURPHY)
PROSECUTOR

AND

PETER THORNTON
ACCUSED
CONSULTATIVE CASE STATED

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

LARCENY ACT 1916 S2

LARCENY ACT 1916 S33

CHILDRENS ACT 1908 – 1989

CHILDREN ACT 1908 S58(1)(b)

CHILDREN ACT 1908 S123

CHILDREN ACT 1908 S131

CHILDREN ACT 1908 S98(3)

G V BORD UACHTALA 1980 IR 32

F V SUPERINTENDENT OF BALLYMUN GARDA STATION 1991 1 IR 189, 1990 ILRM 767

C, STATE V MIN FOR JUSTICE 1967 IR 106

O'C V JUDGES OF DUBLIN METROPOLITAN DISTRICT 1994 3 IR 246

CHILDREN ACT 1908 PART V

CHILD CARE ACT 1991 S3(1)

GUARDIANSHIP OF INFANTS ACT 1964 S3

ADOPTION ACT 1974 S2

FAMILY LAW ACT 1995 S6

FAMILY LAW ACT 1995 S10

FAMILY LAW (DIVORCE) ACT 1996 S5(2)

CHILD CARE ACT 1991 S3(2)

CHILDREN ACT 1908 S20

CHILDREN ACT 1908 S21

CHILDREN ACT 1908 S24

CHILDREN ACT 1908 PART II

CONSTITUTION ART 38.1

CONSTITUTION ART 38.2

CONSTITUTION ART 38.3

CONSTITUTION ART 38.4

CONSTITUTION ART 38.5

AG V X 1992 1 IR 1

STEPHENS V EASTERN HEALTH BOARD UNREP GEOGHEGAN 27.6.1994

CHILD CARE ACT 1991 S3

Synopsis

Children

Juvenile; theft; fitness to plead; Eastern Health Board as guardian; District Court order challenged; power of District Judge to investigate fitness to plead; whether District Judge entitled to make order inquiring into general condition and future care of accused; whether order made in course of criminal proceedings should be limited to inquiry into accused's fitness to plead; whether requirements of order risked right to reasonable expedition by delaying proceedings; whether constitutional right to due process prevails over court's general constitutional duty to promote welfare of child; whether Board obliged to comply with order; s.98(3) Children Act, 1908 Held: District Judge only entitled to make, and Board only obliged to comply with, order relating to accused's fitness to plead High Court: McGuinness J. 24/09/1997

D.P.P. v. Thornton

- [1999] 3 IR 254

1

Mrs Justice McGuiness delivered on the 24th day of September 1997

2

This is a consultative case stated pursuant to Section 52 of the Courts (Supplemental Provisions) Act. 1961by 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, Peter Thornton, in The Children's Court, Smithfield, in the city of Dublin. The Accused was born on 4th December, 1981 and is now 15 years of age.

3

The consultative case stated arose from an Order made by the District Judge on the 11th day of April 1997. The case stated by the learned District Judge is dated the 30th day of June 1997 and the matter came on for hearing before me on the 24th day of July 1997. Since the Accused had been remanded in custody pending the reply of this Court to the question posed in the case stated, I considered the matter to be one of urgency. Accordingly in a brief ruling given on the 30th day of July 1997, I provided replies to the questions posed by the learned 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.

4

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

5

At a sitting of The Children's Court held at District Court No 25. Smithfield in the City of Dublin, on the 4th day of April, 1997 the Accused, Peter Thornton, appeared before Judge Clare Leonard to answer the charge of larceny of a sports jacket, value £30 from a shop in Henry Street, in the City of Dublin, contrary to Section 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 Section 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.

6

At the 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 day of April, 1997.

7

On 11th day of 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.

8

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 Michael Ward the subject of a Fit Person Order made by The Children's Court on the 11th day of January, 1990 When he was committed to the care of the Eastern Health Board. The Fit Person Order is attached to the case stated. The Order was made pursuant to the Children Act, 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 Section 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 3rd December, 1997, unless sooner revoked or varied.

9

The District Judge decided to request the assistance of the Solicitors for the Eastern Health Board and adjourned the hearing until the afternoon of that day for the purpose of hearing the said Solicitors.

10

On the afternoon of 11th April, at the adjourned hearings, Ms Anna Crossan, of Messrs Roger Greene & Sons, Solicitors, appeared on behalf of the Eastern Health Board. She was accompanied by Sinead Flynn of Tabor House and John Rynne both of whom are Eastern Health Board Social Workers. With the consent of the parties the District Judge adjourned the proceedings into chambers as he stated that he did not wish the Accused to be present while his medical and psychiatric condition was discussed. In the course of the conference in chambers, the District Judge was furnished with three further documents in addition to the one already furnished to him by Sinead Flynn. The Four documents are attached to the case stated and are as follows:

11

1. A report dated 28th January, 1997 by Sinead Flynn, Manager of Tabor House the Tabor Society.

12

2. A report dated 6th March, 1997 by Dr Michael Fitzgerald. Consultant Child Psychiatrist. who is employed by the Eastern Health Board.

13

3. Minutes of a case conference held on the 13th March, 1997. in Dr Steevens' Hospital (the headquarters of the Eastern Health Board). These minutes are signed by Ms Brid Clarke, Director of Child Care and Family Support Services with the Eastern Health Board.

14

4. The undated report from the Tabor Society handed into Court on the morning of 11th April, 1997.

15

With the consent of the defence Solicitors the contents of the four reports was considered by the Court and the District Judge sets out in the case stated the general conclusions he drew from them as to the psychiatric condition of the Accused. He also sets out his opinion of the assessment and general care of the Accused by the Eastern Health Board. The Accused was then remanded in custody to Oberstown Boys Centre until 18th day of April, 1997 when he was to appear again at Court No 25. The Court also made the following Order:-

"The Court directs the Eastern Health Board, (a fit person having the care of this boy on foot of a Court Order made in January 1990) to submit its proposals to this 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 to be carried on outside the jurisdiction of these Courts."

16

In conformity with the requirements of Section 123 of the Children Act 1908 the Court established, upon sworn testimony, that the date of birth of the Accused was 4th December, 1981. No determination has yet been made either by the election of the Accused or by the Court as to whether the charges against the Accused should be tried upon indictment or summarily.

17

At the adjourned hearing on 18th April, 1997 the District Judge states that Counsel on behalf of the Eastern Health Board made a number of submissions to him which are set out in the case stated. Since the same matters arose before this Court there is no need to detail the submissions at this point. Suffice it to say that Counsel for the Eastern Health Board submitted that the District Court did not possess the jurisdiction to make child-care directions in the course of a criminal prosecution of a...

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