Forde v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 20 October 2017
• Neutral Citation: [2017] IEHC 799
• Docket Number: [2017 No. 96/S.S.]
• Court: High Court
• Date: 20 October 2017

[2017] IEHC 799

THE HIGH COURT

Faherty J.

[2017 No. 96/S.S.]

IN THE MATTER OF SECTION 52(1) OF THE COURTS

(SUPPLMENTAL PROVISIONS) ACT 1961

BETWEEN

CLODAGH FORDE

APPELLANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Crime & Sentencing - Practice & Procedures - S. 52(1) of the Court's (Supplemental Provisions) Act 1961 - Case stated - Trial of children under 18 years - S. 75 of the Children Act, 2001 - Date of charge versus actual charge of offence

Facts: The appellant filed an appeal against the determination of the Children's Court by way of the case stated to the High Court. The appellant formulated a question for the opinion of the High Court. The question was as to whether the words 'child charged' with an indictable offence appearing under s. 75(1) of the Children Act 2001, included a child, who was under 18 years at the time of the date of alleged offence but over 18 years at the time of the actual charging of that offence. The Circuit Court also sought the opinion of the High Court on the same question and additionally, the learned Circuit Court asked the High Court as to whether the said judge was correct in determining that the words 'child charged' under s. 75(1) of the 2001 Act referred the date on which the child had been actually charged.

Ms. Justice Faherty answered both the questions in the negative. The Court held that the reference to 'a child charged' under s. 75(1) of the 2001 Act did not include a child who was under 18 years at the time of the alleged offence but over 18 years at the time of the actual charging of the alleged offence. The Court also held that the learned judge was not correct in determining the words 'child charged' under s. 75(1) referred the date on which the child had been actually charged. The Court opined that the reference to 'a child charged' under s. 75 (1) must be construed as a person who was a child at the time of charging and also at the time of the s. 75(1) hearing. The Court held that a joint reading of ss. 75 (2), (3) and (4) with reference to 'child' would strengthen the position that 'a child charged' referred to a person who had been under 18 years.

JUDGMENT of Ms. Justice Faherty delivered on the 20th day of October, 2017

1 This is a consultative case stated by Judge John O'Connor, a Judge of the District Court, sitting as the Children Court, pursuant to s. 71 of the Children Act, 2001, ('the 2001 Act') at the request of the appellant, Clodagh Forde, pursuant to s. 52(1) of the Court's (Supplemental Provisions) Act 1961.

2 The background as set out by the learned District Judge is as follows:

'1. In the present case, Clodagh Forde with a date of birth of 18th of April 1998 was charged by Garda Kieran McCabe on Bridewell Charge Sheet 17316629 on the 16th of December 2016 with the following offence, that on the 2/07/2015 at Capel Street, Dublin 1 in the said district, she did assault one Tatiana Petruskova with intent to commit an indictable offence robbery, contrary to Section 18 of the Criminal Justice (Public Order) Act, 1994 as amended by Section 22 of the Intoxicating Liquor Act 2008.

2. As a result of the 17 and a half month delay in charging Clodagh Forde, she has now turned 18. She wishes to make submissions under Section 75(1) to seek to have the Children's Court deal summarily with the indictable offence with which she has been charged.

3. Section 75(1), (2), (3) and (4) of the Children Act, 2001 state the following:

(1) Subject to subsection (3), 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.

(2) 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.

(3) The Court shall not deal summarily with an indictable offence where the child, on being informed by the Court of his or her right to be tried by a jury, does not consent to the case being so dealt with.

(4) In deciding whether or not to consent under subsection (3) a child may obtain'

(a) the assistance of his or her parent or guardian or, if the child is married to an adult, his or her spouse, or

(b) where the parent or guardian or adult spouse of the child does not for any reason attend the relevant proceedings, the assistance of any adult relative of the child or other adult who is accompanying the child at the proceedings.

4. On the 10th January, 2017 the Children's Court was asked to consider the following question,

Where Section 75(1) of the Children Act 2001 refers to 'a child charged' with an indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, does that also include a child who was under 18 at the time of the date of the alleged offence but over 18 at the time of the actual charging of the alleged offence.

5. The Children's Court made a determination that, where section 75(1) of the Children Act 2001 refers to 'a child charged' with an indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, it means the date on which the child is actually charged.

6. Clodagh Forde wishes to appeal this determination of the Children's Court by way of case stated to the High Court refer the following question of law,

Where section 75(1) of the Children Act 2001 refers to 'a child charged' with an indictable offence, other than an offence which is required to be tried by the Central Criminal on manslaughter, does that also include a child who was under 18 at the time of the date of the alleged offence but over 18 at the time of the actual charging of the alleged offence.

7. The opinion of the High Court is therefore sought on the following question:

On the facts of this as agreed, section 75(1) of the Children Act 2001 refers to 'a child charged' with an indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, does that also include a child who was under 18 at the time of the date of the alleged offence but over 18 at the time of the actual charging of the alleged offence, and was I correct in determining that it means the date on which the child was actually charged.'

The appellant's submissions

3 The appellant's primary contention is that in order to benefit from the provisions of the 2001 Act, it is sufficient that the person before the Children's Court was a child at the time of the commission of the alleged offence. It is submitted that for the 2001 Act to be properly construed, it must be read to cover persons who appear in the Children's Court when over the age of 18 years in circumstances where they were under the age of 18 at the time of the commission of the alleged offence which, counsel submits, is the critical time for the purposes of the interpretation of the 2001 Act. Counsel contends that this is the interpretation most consistent with the intention of the Oireachtas, and with the provisions of Article 42A of the Constitution.

4 It is further urged that the existing custom and practice of the Children's Court supports the appellant's interpretation. District Judge O'Connor takes the view that if a child has attained the age of 18 years at the time of the s. 75 submissions, that will not preclude the person from the benefit of the 2001 Act, provided the person was a child at the time of the commission of the offence and a child at the time of charging.

5 It is thus submitted that it is the practice in the Children's Court that if a person turns eighteen before the question of s. 75 submissions has been dealt with, that the court will allow such persons to avail of s. 75. Counsel asserts that the construction being contended for by the appellant, namely that being a child at the time of charging is not a necessary requirement for the appellant to receive the benefits of the 2001 Act, and that it is sufficient if the appellant was a child at the time of the commission of the alleged offence, represents no more than the logical extension of the existing custom and practice in the Children's Court.

6 As the appellant understands it, the respondent's position is that the correct measuring date for the purposes of s. 75 submissions is the date on which the s. 75 hearing takes place and that it is not sufficient for the purposes of securing the benefit provided for in s. 75 that the person would have been under 18 years at the time of charging. Counsel for the appellant thus submits that the respondent's interpretation of s.75, which is that in order to get the benefit of the 2001 Act, a person has to be under 18 years of age at the time of the s. 75 submissions as well as at the time of charging, cannot be reconciled with the current practice and procedure of the Children's Court. Accordingly, the respondent's interpretation of s. 75 is at odds with the existing custom and practice in the Children's Court.

7 It is not the appellant's contention that the District Judge must keep the case in the Children's Court, rather, the appellant contends that it is the legal position, on the appellant's interpretation of the 2001 Act, that it is open to the District Judge to entertain a submission to keep the appellant's case in the Children's Court.

8 Accordingly, the appellant's argument is that it is the time of the offence that is the immutable issue, whereas the time of charging and the s. 75 hearing are subject to variables. It is thus argued that the variables which pertain as to when a person may be...