McD v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 April 2016
• Neutral Citation: [2016] IEHC 210
• Court: High Court
• Docket Number: [2015 No. 734 J.R.]
• Date: 25 April 2016

[2016] IEHC 210

THE HIGH COURT

Humphreys J.

[2015 No. 734 J.R.]

BETWEEN

M. McD.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

JUDGE DAVID KENNEDY

NOTICE PARTY

Crime & Sentencing – S. 3 of the Misuse of Drugs Act 1977 – S. 45(1) of the Courts (Supplemental Provisions) Act 1961 – The Children Act 2001 – Judicial review – Prohibition of trial – Delay – O. 84, r. 21 (4) of the Rules of the Superior Courts – Fair procedures

Facts: The applicant, by way of the present judicial review proceedings, sought leave to apply for an order of prohibition of his trial. The applicant also sought an order for restriction of reporting of the applicant's identity. The applicant contended that since there was delay in the prosecution of his trial, the continuance of his trial at present would be prejudicial to him. The applicant alleged that since he was a minor at the time of the commission of the alleged offences, he should have been tried as a child under the Children Act 2001 to avail the benefit of anonymity and admission to diversion programme.

Mr. Justice Richard Humphreys granted an order for restriction of publication of material that sought to identify the applicant under s. 45 of the Courts (Supplemental Provisions) Act 1961. The Court, however, dismissed the application for leave. The Court held that scope of s. 45 of the Act of 1961 was wide enough to include not only minors, but minor matters for the purpose of reporting restrictions and merely because an accused was a child would not itself be a ground to restrict reporting. The Court observed that in order to grant an ex-parte application for leave, the Court must determine whether the underlying case was arguable and that the application was within prescribed limits. The Court held that since the applicant was a child at the time of commission of offence and those offences being committed recently, it was appropriate that the identity of the applicant should be kept anonymous. The Court found that since the applicant had failed to make an arguable case and his application for leave being time barred, the leave could not be granted. The Court observed that since the applicant was tried as an adult for offences committed when he was about to turn into an adult, no serious prejudice would be caused to him, more so, when his suitability for the benefit of diversion programme had been examined under the 2001 Act and he was found non-suitable for it. The Court held that an extension of time-limit being jurisdictional to the grant of leave, in the absence of any request for time extension, oral or written, the extension of time for filing the present delayed leave application could not be granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25h day of April, 2016

1 The applicant was born in August, 1996. On 7th January, 2014, when he was aged seventeen years and four months, he was involved in an incident which gave rise to an allegation that he had been in possession of cannabis contrary to s. 3 of the Misuse of Drugs Act 1977, and in possession of a knife contrary to s. 9 of the Firearms and Defensive Weapons Act 1990.

2 His case was referred by Gardaí for a direction from the Juvenile Diversion Programme but he was deemed not suitable for diversion.

3 On 20th May, 2014, an application was made for two summonses arising from the incident in question. Those summonses were issued on 26th May, 2014, with a return date of 15th September, 2014.

4 The applicant turned eighteen in August, 2014.

5 The applicant had given his mother's surname to Gardaí but his father's address. While the applicant has denied that he was living between his mother's house and his father's house at the time (his parents being separated) (see para. 5 of his affidavit of 10th March, 2016), he has not denied the averment of Garda Padraig Nagle at para. 8 of his affidavit that ‘from time to time the applicant uses two different addresses, that of his father… and that of his mother’.

6 Garda Nagle went on to aver that ‘the use by the applicant of his mother' surname at his father's address created some confusion and concern about service and that due to these difficulties were encountered in serving the initial summonses and the two summonses were reissued and then served’.

7 An indication of the difficulty and confusion involved appears from the affidavit of Joseph Maguire, the applicant's solicitor, originally grounding the application and sworn on 18th December, 2016, which states that at para. 3 that the applicant ‘was at that time and continues to live with his parents’. No doubt this averment was made on instructions, but after quite a number of adjournments to enable the applicant to reply to the affidavit of Garda Nagle of 12th January, 2016, he has now stated instead that he was, at the time, living with his father at the given address.

8 In the light of what the prosecution says was the confusion referred to, the two summonses were returned unserved on 18th March, 2015.

9 On 18th May, 2015, fresh summonses were issued returnable for Bray District Court on 17th September, 2015.

10 The applicant's solicitor avers that these summonses were served on 2nd August, 2015 (para. 4 of his affidavit).

11 A statement grounding an application for judicial review was filed in the Central Office on 18th December, 2015, and the application was moved in court on 21st December, 2015. I directed that the respondent be put on notice, and I have now heard from Mr. Patrick McGrath, S.C. for the applicant and Ms. Lily Buckley, B.L., for the Director.

Should the notice party be struck out?

12 The applicant has named Judge David Kennedy as a notice party as appears from the title to the proceedings. The applicant now accepts that the Rules of the Superior Courts (Judicial Review) 2015 require that the judge concerned not be named, either as a respondent or notice party (O. 84, r 22(2A)) (see my judgment in Hall v. Stepstone Mortgage Funding Limited (No. 1)[2015] IEHC 737 (16th November, 2015)). The notice party must therefore be struck out.

Does the court have jurisdiction to restrict reporting of the applicant's identity?

13 This application concerns an offence allegedly committed when the applicant was, in law, a child, although he turned eighteen during the currency of the District Court proceedings.

14 The principle of publicity arises under Article 34.1 of the Constitution ‘save in such special and limited cases as may be prescribed by law’, and is also embodied in Article 6(1) of the ECHR, which provides that ‘[j]udgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of moral, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require or to the extent necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’

15 Section 45(1) of the Courts (Supplemental Provisions) Act 1961 provides in pertinent part that ‘[j]ustice may be administered otherwise than in public in any of the following cases…(c) lunacy and minor matters.’

16 It seems to me that the wording of this provision is in deliberately wide terms. It is not confined to proceedings relating to persons who are children at the time the matter comes before the court, but simply to ‘minor matters’, which potentially can have a broader scope.

17 The existence of a discretion or jurisdiction does not, of course, mean that it should always be exercised to restrict reporting, and there may well be cases where what might be termed a ‘aged-out’ young person should be named in the context of proceedings where this would not arise if he or she was a minor. Even the fact that a party is a child is not in itself an automatic reason for reporting restrictions, for example in the personal injury context. However, it seems to me that the jurisdiction conferred by s. 45 should not be construed so narrowly as to limit it to a situation where the person involved is a child at the time the matter falls to be considered by the court. Many examples could be produced to show how such a limited and rigid interpretation could give rise to injustice. For example, if due to a protracted process of judicial review or appellate scrutiny, a child turned eighteen just before the finalisation of proceedings, the court would, on such an interpretation, be powerless to restrict publication of his or her identity.

18 One can also envisage an incident involving similarly aged young people where for one reason or another, criminal proceedings against one of the co-accused did not come to fruition until after that child's eighteenth birthday. It would be invidiously discriminatory in those circumstances if that individual had to shoulder the full burden of publicity where a similarly aged (at the time of the offence) co-accused did not.

19 Furthermore, one might reasonably ask what would stop the naming of a child defendant even after the finalisation of proceedings, once he or she had turned eighteen? Under those circumstances, if s. 45 was to be given a rigidly narrow interpretation, it is hard to see how the court could make an order under that section which could endure to prevent such publication of identity after that point.

20 In my view, the interpretation of s. 45 that is most sensitive to the rights of the citizen and best enables the court to strike the balance between the competing interests involved is to read it as permitting the court to restrict the publication of the identity of persons in relation to matters where such persons were minors at the time of the issues being litigated. Obviously, such orders are not to be made...