LT v Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Barr
• Judgment Date: 18 April 2024
• Neutral Citation: [2024] IEHC 224
• Court: High Court
• Docket Number: [Record No. 2023/315 JR]

Between

LT (A Minor)

Applicant

and

The Director of Public Proseuctions, Ireland and The Attorney General

Respondents

[2024] IEHC 224

[Record No. 2023/315 JR]

THE HIGH COURT

JUDGMENT ofMr Justice Barrdelivered electronically on the 18 ^th day of April 2024.

Introduction.

1 . Section 4 of the Criminal Justice (Public Order) Act 1994, as amended, (hereinafter ‘the 1994 Act’) provides that it is an offence for any person to be present in a public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself, or any other person in his vicinity.

2 . Sections 23A and B were inserted into the 1994 Act by a combination of the Criminal Justice Act 2006 and the Intoxicating Liquor Act 2008. These sections provide for the serving of a notice known as a fixed charged notice (hereinafter ‘FCN’) by the arresting garda on the person who has been arrested, inter alia, for an offence committed under s.4 of the Act. When the person receives the FCN, they can elect to pay the fine stipulated therein. If they do that, that will be the end of the matter. They will not acquire any criminal conviction. Alternatively, if they wish to challenge the accusation that they had committed an offence under s.4, they can ignore the notice and the matter will proceed to a summary trial in the District Court in the usual way.

3 . The FCN procedure provided for under the 1994 Act, is only available to people who are not less than 18 years of age.

4 . The applicant is charged with an offence of being intoxicated in a public place contrary to s.4 of the 1994 Act on 17 July 2022, when he was 16 years of age.

5 . The applicant was not eligible to receive an FCN under s.23 of the 1994 Act, as he was under 18 years of age at the relevant time. Instead, he was processed under the provisions of the Juvenile Diversion Programme provided for under the Children Act 2001 (hereinafter ‘the 2001 Act’). The director of the diversion programme deemed that the applicant was unsuitable to be dealt with on that occasion under the diversion programme. Accordingly, he was brought for trial before the District Court.

6 . In these proceedings, the applicant challenges his exclusion from the FCN provisions of the 1994 Act. He maintains that his exclusion therefrom, contravenes his right to equal treatment before the law, as provided in Art. 40.1 of the Constitution.

Background.

7 . The relevant facts in this case are not in dispute. The applicant was summoned to appear before Dungarvan District Court on 06 March 2023, to answer one charge of being intoxicated in a public place contrary to the provisions of s.4 of the 1994 Act, as amended. When the matter came before the District Court, the applicant's solicitor raised a query as to whether or not the applicant had received an FCN. He was informed by the prosecution garda inspector that such notices were not issued to juveniles, as they had no source of income to pay them. The matter was adjourned to 03 April 2023, for hearing.

8 . The applicant's solicitor wrote to the Garda Síochána seeking clarity in respect of the matter. On 14 March 2023, he received a response from the gardaí, stating that an FCN had not issued in the case and stating that the issue of such a notice was always a discretionary matter for the arresting garda. Upon making further inquiry in the matter, the applicant's solicitor received a further response wherein it was indicated that it was at the discretion of An Garda Síochána as to what sanction to apply.

9 . The applicant's solicitor stated in his affidavit that the penalty for an offence under s.4 of the 1994 Act, is a fine not exceeding €500. However, s.108 of the 2001 Act provides that where a court is satisfied of the guilt of a child, on an offence which is dealt with summarily and that the appropriate remedy is a fine, the fine shall not exceed half the amount which the District Court could impose in the case of a person of full age and capacity. The applicant's solicitor stated that he had been instructed that had an FCN been issued in this case, the applicant would have paid the fine stipulated therein.

10 . In his affidavit sworn on 10 October 2023, verifying the statement of opposition in this case, Inspector Alan Kissane stated that children who are suspected of public order offences under the 1994 Act, have the possibility of having these matters disposed of through a non-court option in the form of the diversion programme created under part IV of the 2001 Act. The diversion programme provides an alternative to prosecution for children between the ages of 12 and 17 years. The objective of the programme is to divert 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. Inspector Kissane stated that that objective was achieved primarily by administering a formal, or informal, caution to such a child and, where appropriate, by placing him or her under the supervision of a juvenile liaison officer (“JLO”) and by convening a conference to be attended by the child, family members and other concerned persons.

11 . He stated that the director of the diversion programme is a member of An Garda Síochána, not below the rank of superintendent, who is assigned for that purpose by the Commissioner of An Garda Síochána. The director decides whether to admit a child to the diversion programme and the category of caution to be administered to any child so admitted. A child shall not be prosecuted for the criminal behaviour, or for any related behaviour, in respect of which he or she has been admitted to the diversion programme. If the director decides not to admit a child to the diversion programme in respect of a particular offence, the child may be prosecuted in the normal manner.

12 . Inspector Kissane outlined the different forms of caution that can be administered under the diversion programme. Where a formal caution is issued, the child is placed by the director under the supervision of a JLO for a period of twelve months from the date of the administration of the caution. Where an informal caution has been issued, the child is not placed under the supervision of a JLO; however, in exceptional circumstances, the child who has received an informal caution, may be placed by the director of the programme under the supervision of a JLO for a period of six months from the date of administration of the caution.

13 . Admission to the diversion programme is only available to children who are at least 12 years of age and who are under 18 years of age. The age for admission to the programme is determined by the age of the child on the date on which the criminal, or anti-social behaviour, took place.

14 . Inspector Kissane stated that due to the provisions of s.48(1) of the 2001 Act, he was significantly limited in what he could say about the applicant's prior involvement in the diversion programme. He had been advised that he could only state that the applicant had been considered for inclusion in the diversion programme on a number of occasions in the past. On some of those occasions, he had been deemed unsuitable for inclusion in the programme.

15 . In the present case, the applicant had been considered for admission to the diversion programme in relation to the alleged s.4 offence. By decision dated 04 August 2022, the applicant had been deemed ‘unsuitable in this case only’ for admission to the diversion programme. It was therefore considered appropriate to issue a summons and to prosecute the offence in the usual way.

The Law.

16 . Article 40.1 of the Constitution provides:

“All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

17 . The relevant provisions of the Criminal Justice (Public Order) Act 1994, as amended, have been summarised earlier in the judgment. It is not necessary to set out these statutory provisions in more detail.

18 . The provisions of the Children Act 2001, as amended, sets up a comprehensive regime for dealing with children who may be entering, or may be within, or may be leaving, the criminal justice system. The long title to the Act provides as follows:

“An Act to make further provision in relation to the care, protection and control of children and, in particular, to replace the Children Act, 1908, and other enactments relating to juvenile offenders, to amend and extend the Child Care Act, 1991, and to provide for related matters.”

19 . As already noted, the Act makes extensive provision for the establishment of a diversion programme, which is designed to provide a mechanism whereby children who are accused of criminal offences, can avoid a criminal conviction, if they admit responsibility for their behaviour and consent to receiving either an informal or a formal caution. The Act also provides for significant differences in treatment between children and adults who come in contact with the criminal justice system. In particular, part V deals with the issue of criminal responsibility of children; part VI deals with treatment in custody; part VII deals with the venue for trials relating to children; part VIII deals with proceedings in court dealing with children; and part IX deals with provisions concerning sentencing and detention of children. It is not necessary to set out the detailed provisions that are provided for in the 2001 Act, save to note that the Act provides a comprehensive system for dealing with children coming into, within, or exiting, the criminal justice system.

20 . There have been a number of cases which have looked at the issue of the right to equal treatment as provided for in Art. 40.1 and in...