J.M. (A Minor Suing by His Father and Next Friend G.M.) v The Commissioner of an Garda Síochána the Director of the Juvenile Diversion Programme
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 01 February 2022 |
| Neutral Citation | [2022] IEHC 149 |
| Court | High Court |
| Docket Number | [2021 276 JR] [2021 695 JR] [2021 692 JR] |
[2022] IEHC 149
[2021 276 JR]
[2021 688 JR]
[2021 695 JR]
[2021 692 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Statutory interpretation – Children Act 2001 s. 23 – Applicants seeking judicial review – Whether the proper interpretation of s. 23 (1) (a) of the Children Act 2001 is to entitle the applicants and their legal advisors to be provided with all material contained in the Garda investigation file
Facts: Four applications seeking judicial review came before the High Court for hearing on 14 January 2022. Although there was a somewhat different approach adopted on behalf of the fourth applicant, it was contended on behalf of all that the proper interpretation of s. 23 (1) (a) of the Children Act 2001 is to entitle the applicants and their legal advisors to be provided with all material contained in the Garda investigation file. The respondents, the Commissioner of An Garda Síochána and the Director of the Juvenile Diversion Programme, submitted that no such entitlement arose. On behalf of the first three applicants it was submitted that to accept responsibility for criminal or antisocial behaviour is a condition precedent for the operation of the Diversion Programme. That being so, it was submitted that to admit responsibility for criminal behaviour is analogous to making a guilty plea in the context of criminal proceedings. It was also submitted that the applicants were unequivocally part of a trial process and should be afforded the Constitutional protection of a trial in due course of law. It was submitted that the refusal to provide materials sought meant that the rights of the applicants to be legally advised under s. 23 (1) (a) of the 2001 Act had been rendered meaningless. Although the fourth applicant sought the same relief as the first three, the mainstay of the fourth applicant’s argument concerned the right to fair procedures. Although, like the first three applicants, the fourth contended that the proper interpretation of s. 23 (1) (a) of the 2001 Act is that the applicant had a right to be provided with the material sought, it was also argued, with reliance on Article 38.1 of Bunreacht na hÉireann – which concerns the right to a trial in due course of law – that the applicant was entitled to the right to be provided with the material on the Garda investigation file, even if such a right is not found in s. 23.
Held by Heslin J that, in light of the evidence before the court as to what was already known to each of the applicants, their parents and solicitors, there was no possibility of any risk of injustice arising out of the relevant decisions to decline to furnish the documents from the Garda investigation file. Heslin J took this view in circumstances where each child retained a ‘veto’ over admission to the Programme, and having regard to the nature of the decision which the applicants were faced with making, namely, a decision for the purposes of s. 23 which, if responsibility was accepted, simply entitled them to be considered for admission to the Diversion Programme, but was a decision which could in no way prejudice any potential future criminal prosecution. Heslin J agreed with the submissions made on behalf of the respondents that the principles relied upon and authorities cited by the applicants did not establish any fair procedures right which would extend to an entitlement to obtain, in effect, all documents and material contained in the Garda Investigation file as the applicants’ solicitors might deem necessary. Heslin J held that a literal interpretation of s. 23 revealed no right of the type contended for by the applicants.
Heslin J held that none of the applicants were entitled to any of the relief claimed and all four applications must be dismissed.
Applications refused.
JUDGMENT of Mr. Justice Mark Heslin delivered on the 1st day of February, 2022
Four applications seeking judicial review came before the court for hearing on 14 January 2022. Given the age of two of the applicants, the Court was asked to expedite delivery of this judgment. This has been done, although a consequence of same may well be the inclusion of repetition which might otherwise have been dealt with, had the parties not been so anxious, for understandable reasons, to obtain judgment at the earliest opportunity.
Although the individual facts are somewhat different, similar arguments are made in applications which relate to the proper interpretation of s. 23 (1) (a) of the Children Act 2001 (“the 2001 Act”) which states:-
“(1) A child may be admitted to the Programme if he or she—
(a) accepts responsibility for his or her criminal behaviour, having had a reasonable opportunity to consult with his or her parents or guardian and obtained any legal advice sought by or on behalf of him or her …”.
The “Programme” referred to is the Juvenile Diversion Programme which is provided for by Part 4 of the 2001 Act. Section 19 of the 2001 Act clearly sets out the objective of the Programme in the following terms:-
I will presently look at more detail at further provisions in the 2001 Act as regards the Diversion Programme.
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“(1) The objective of the Programme is to divert from committing further offences any child who accepts responsibility for his or her criminal or anti – social behaviour from committing further offences or engaging in further anti – social behaviour.
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(2) The objective shall be achieved primarily by administering a caution to such a child and, where appropriate, by placing him or her under the supervision of a juvenile liaison officer and by convening a conference to be attended by the child, family members and other concerned persons”.
At the hearing, the first three applicants were represented by Mr. Colman Cody SC, the fourth applicant was represented by Mr. Michael Delaney SC and Mr. Shane Murphy SC represented the respondents. I am very grateful to counsel for the written submissions which were provided to the court and for the oral submissions made with great clarity and skill by the respective counsel at the hearing. I have carefully considered all submissions made and will refer during the course of this judgment to the principal submissions. For present purposes it may be useful to set out, in summary, several of the main arguments.
Although there was a somewhat different approach adopted on behalf of the fourth named applicant, it was contended on behalf of all that the proper interpretation of s. 23 (1) (a) is to entitle the applicants and their legal advisors to be provided with all material contained in the Garda investigation file. The respondents submit that no such entitlement arises.
On behalf of the first three applicants it is submitted that to accept responsibility for criminal or antisocial behaviour is a condition precedent for the operation of the Diversion Programme. That being so, it is submitted that to admit responsibility for criminal behaviour is analogous to making a guilty plea in the context of criminal proceedings. It is also submitted that the applicants are unequivocally part of a trial process and should be afforded the Constitutional protection of a trial in due course of law. It is submitted that the refusal to provide materials sought means that the rights of the applicants to be legally advised under s. 23 (1) (a) of the 2001 Act have been rendered meaningless. I will presently look in more detail at specific submissions made on behalf of the first three applicants.
Although the fourth applicant seeks the same relief as the first three, the mainstay of the fourth named applicant's argument concerns the right to fair procedures. Although, like the first three applicants, the fourth contends that the proper interpretation of s. 23 (1) (a) of the 2001 Act is that the applicant has a right to be provided with the material sought, it is also argued, with reliance on Article 38.1 of Bunreacht na hÉireann — which, of course, concerns the right to a trial in due course of law — that the applicant is entitled to the right to be provided with the material on the Garda investigation file, even if such a right is not found in s. 23.
The respondents argue that, properly interpreted, s. 23 of the 2001 Act does not confer on the applicants any right to be provided with the materials contained in the Garda investigation file. The respondents argue that the applicants' entitlement to legal advice is not rendered meaningless as a result of the applicants and their respective legal advisors not having sight of all such material contained in the Garda investigation file as they might deem necessary in the context of the provision of legal advice. As well as pointing to the fact that certain materials have already been provided to the respective applicants during their Garda interviews where their respective solicitors were present, the respondents submit that the provision of legal advice, per s. 23 (1) (a) of the 2001 Act with respect to the Juvenile Diversion Programme, is not a mechanism for the applicants and their solicitors to enable disclosure of all material in the...
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J.M. v The Commissioner of an Garda Síochána ; D.H. v The Commissioner of an Garda Síochána ; L.B. v The Commissioner of an Garda Síochána ; R.G. v The Commissioner of an Garda Síochána
...to s. 23, ran “contrary to the will of the Oireachtas as clearly expressed in the plain meaning of the words used in the legislation” ([2022] IEHC 149). The court also found that the contended-for right did not arise by “virtue of European directive or constitutional provision”. The applica......