Jason English v DPP

• Jurisdiction: Ireland
• Judge: O'Neill J.,Mr. Justice McMahon
• Judgment Date: 23 January 2009
• Neutral Citation: [2008] IEHC 398
• Court: High Court
• Date: 23 January 2009

[2008] IEHC 398

THE HIGH COURT

630 JR/2006

English v Health Service Executive (HSE) & Ors

BETWEEN

CAROL ENGLISH

APPLICANT

AND

HEALTH SERVICE EXECUTIVE AND JUDGE BROPHY AND THE MINISTER FOR HEALTH AND CHILDREN

RESPONDENTS

CHILD CARE ACT 1991 S57

CHILD CARE (PRE-SCHOOL SERVICES) REGS 1996 SI 398/1996 ART 7

CHILD CARE ACT 1991 S50

CHILD CARE ACT 1991 S63

CHILD CARE ACT 1991 S68

CHILD CARE (PRE-SCHOOL SERVICES) REGS 1996 SI 398/1996 ART 33

CITYVIEW PRESS LTD & FOGARTY v COMHAIRLE OILIUNA & ORS 1980 IR 381

CHILD CARE (PRE-SCHOOL SERVICES) (AMDT) REGS 1997 SI 268/1997

CHILD CARE (PRE-SCHOOL SERVICES) REGS 2006 SI 505/2006

CHILD CARE (PRE-SCHOOL SERVICES) REGS 1996 SI 398/1996 ART 15

KING v AG & DPP 1981 IR 233

DUNDALK TOWN COUNCIL v LAWLOR 2005 2 ILRM 106 2005/17/3524 2005 IEHC 73

PLANNING & DEVELOPMENT ACT 2000 S154

PLANNING & DEVELOPMENT ACT 2000 S154(1)

WESTERN HEALTH BOARD v M (K) 2002 2 IR 493 2001/24/6537

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

DPP v BEST 2000 2 IR 17 1998 2 ILRM 549 1998/15/5270

SCHOOL ATTENDANCE ACT 1926 S4(1)

SCHOOL ATTENDANCE ACT 1926 S17

SCHOOL ATTENDANCE ACT 1926 S4(2)(B)

SCHOOL ATTENDANCE ACT 1926 S4

CHILD CARE ACT 1991 PART VII

Abstract:

Judicial review - Criminal law - Child care - Interpretation of legislation - Child Care Act, 1991 - Child Care (Pre-School Services) Regulations 1996 (S.I. 398 of 1996) - Whether the offence for which the applicant was convicted was not capable of constituting a criminal offence due to lack of certainty - Whether the second named respondent acted properly in convicting the applicant of that offence.

Facts The applicant sought by way of judicial review, an order of certiorari quashing the conviction imposed on her by the second named respondent. The applicant had been convicted of an offence following a prosecution by the first named respondent under s. 57 of the Child Care Act, 1991, for failure to comply with Article 7 of the Child Care (Pre-School Services) Regulations 1996. The applicant herein submitted that Article 7 was not capable of constituting a criminal offence as it lacked certainty and in particular failed to specify what the 'sufficient' number of competent adults required to supervise pre-school children was and did not specify the appropriate staff/child ratios in order to ensure sufficiency. The applicant also asserted that the third named respondent failed to act within his powers under the 1991 Act in wrongly delegating his powers to either civil servants or the first named respondent who in turn wrongly usurped the third named respondent's powers by producing an Explanatory Guide in relation to the relevant legislation. The applicant had furnished to the first named respondent and to the parents of children who contemplated using her service details of the staff/child ratio, and that ratio was in accordance with the ratio set out in the Guide to the Regulations.

Held by McMahon J. in refusing the application: That the Guidelines published in relation to the Regulations although not legally binding did have some relevance to the proceedings in the District Court wherein the applicant was prosecuted and convicted. The second named respondent was entitled to consider the Guide when determining what 'sufficient' meant in that context. The applicant was operating within a well known and well defined system. The staff/child ratios were published and accepted by all those who participated and had an interest in the pre-school service industry and the plaintiff herself had adopted them. The second named respondent in determining whether there was a competent number of adults supervising children in the applicant's pre-school, was determining a question of fact based on the evidence presented by the Pre-School Services Officer of the first named respondent. The second named respondent was quite entitled to form the view that the ratio on the occasion in question was insufficient and was entitled to convict the applicant in light of the evidence produced. The fact that 'sufficient' was not defined with more specificity in the Regulations did not mean that a Judge could never make a finding of insufficiency in a given case.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice McMahon delivered on the 5th day of December, 2008

2 Leave to judicially review an order of the second-named respondent was given by order of the High Court (Peart J.) on the 29 ^th May 2006.

Factual Summary

3 The applicant, Carol English, was convicted of an offence following prosecution by the Health Service Executive ("the HSE") under s. 57 of the Child Care Act 1991, in Navan District Court on the 10 ^th May, 2006, for her failure to comply with Article 7 of the Child Care (Pre-School Services) Regulations 1996 ( S.I. 398 of 1996). More precisely, the applicant was charged with failing to ensure that a "sufficient" number of competent adults supervised the pre-school children in her service at all times. A fine of €250.00, as well as costs, was imposed. A stay on the execution of the District Court Order was agreed pending the determination of the judicial review proceedings.

The Applicant's Claim

4 The applicant seeks an order of certiorari quashing the conviction imposed by the second-named defendant. The applicant's central claim is that Article 7 of the Child Care (Pre-School Services) Regulations 1996 ( S.I. 398 of 1996) ("the Regulations") is not capable of constituting a criminal offence as it lacks certainty as the statutory instrument itself does not specify either the appropriate staff/child ratios in order to ensure sufficiency or the qualifications required of the staff in order to meet the competence requirement. Article 7 of the Regulations of 1996 provides:-

"A person carrying on a pre-school service shall ensure that a sufficient number of competent adults are supervising the pre-school children in the service at all times."

5 The argument is ever more cogent, according to the applicant, when it is realised that the Article purports to create an offence of strict liability.

6 The applicant further asserts that the Minister for Health ("the Minister") failed to act within its powers under ss. 50, 63 and 68 of the Child Care Act 1991, ("the Act") in wrongly delegating its powers and in neglecting to stipulate the precise number of staff required in childcare centres, and in wrongly delegating its powers to either civil servants or the HSE who in turn wrongly usurped the Minister's powers when they produced the Explanatory Guide to Requirements and Procedure for Notification and Inspection("the Guide"). This claim is based on the principle of delegatus non potest delegare.

7 A declaration is further sought by the applicant that the Guide has no legal effect.

First Respondent

8 The first respondent, the HSE, contends that it acted at all times within its powers as conferred on it by the Act of 1991 and the Regulations of 1996 and takes particular exception to the applicant's claim that it led the District Court to exceed its jurisdiction in this matter. It also disputes that it is the author of the Guide and emphasises that the Guide was produced by the Department of Health. Finally, the HSE argues that the offence in question is not so vague or unclear in the circumstances of this case as to render it jurisprudentially infirm.

Third Respondent

9 The third respondent, the Minister for Health and Children, also refutes the applicant's claim that due to uncertainty, there is no valid offence created in law under Article 7 of the Regulations of 1996.

10 Furthermore, the third respondent denies any failure to act within its powers under the Act by not enumerating specific staff child ratios, as it asserts that there was no such obligation to prescribe ratios under the Act. In its view valid public policy considerations are the basis for the language used in Article 7 of the Regulations. As regards the Guide, it suggests that this was "published as one document along with the regulations whereby a degree of certainty was afforded for a pre-school provider". The third respondent states that the ratios were prescribed in the Guide and not in the Regulations as this afforded a measure of necessary flexibility for the HSE., whose inspectors, in carrying out inspections fully appraise and advise pre-school service providers of the standards required of them. In response to the applicant's suggestion that the Guide, by claiming to "expand on the 1991 Act", is wrongfully usurping powers which are vested properly elsewhere, the third respondent highlights that the Guide itself merely professes to "briefly outline" the requirements in the Regulations of 1996, and that any claim that it "expands" the Regulations in a legal sense, is based on a "selective reading". The third respondent asserts that the determination of "sufficiency" is at the end of the day a matter for the Judge.

11 The third respondent avows that any delegation of powers was lawfully and validly done. Specifically as regards the Guide, the third respondent argues that powers were delegated pursuant to section 50 of the Act and Article 33 of the Regulations. As regards the applicant's claim that the authors of the Guide usurped the powers of the Minister, this is denied, as the Guide, it is contended, was prepared by a group led by the Minister.

12 The State increasingly and for a variety of reasons controls entry into various economic activities in modern society. Although no general regulatory legislation exists for industrial or commercial activities there are many examples in Ireland of specific legislation which regulates or restricts specific activities of a commercial or industrial character. Such specific regulatory legislation usually commences by establishing a licensing authority or...