McM v The Manager of Trinity House

• Jurisdiction: Ireland
• Judge: Laffoy J.
• Judgment Date: 15 June 1995
• Neutral Citation: 1997 WJSC-HC 1531
• Court: High Court
• Docket Number: No 702 S.S./1995,[1995 No. 702SS]
• Date: 15 June 1995

1997 WJSC-HC 1531

THE HIGH COURT

No 702 S.S./1995

MCM (M) v. MANAGER OF TRINITY HOUSE

IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4 OF THE

CONSTITUTION

BETWEEN

M. McM (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, G.McM)

APPLICANT

AND

THE MANAGER OF TRINITY HOUSE, IRELAND AND THE ATTORNEYGENERAL AND THE MINISTER FOR EDUCATION

RESPONDENTS

Citations:

CHILDRENS ACT 1908 S69(2)

RSC O.60

CHILDRENS ACT 1908 S69

CHILDRENS ACT 1908 S44

CHILDRENS ACT 1908 ADAPTATION ORDER 1928 S R & O NO 8/1928

CHILDRENS ACT 1908 S69(2)(c)

CONSTITUTION ART 50

SHEERIN, STATE V KENNEDY 1966 IR 379

PREVENTION OF CRIME ACT 1908 S7

DEATON V AG & REVENUE COMMISSIONERS 1963 IR 170

CHILDREN (AMDT) ACT 1957 S5

J V DELAP 1989 IR 167

CRAVEN, STATE V FRAWLEY 1980 IR 1

BOYLE, STATE V GOV OF THE CURRAGH MILITARY DETENTION BARRACKS 1980 ILRM 242

PRISONS ACT 1972 S2(3)

CONSTITUTION ART 42.5

MURPHY V DUBLIN CORPORATION 1972 IR 215

CARLTONA LTD V COMMISSIONERS OF WORKS 1943 2 AER 560

REIDY V MIN FOR AGRICULTURE UNREP O'HANLON 9.6.89 1989/8/2233

MINISTERS & SECRETARIES ACT 1924 S15(4)

DOCUMENTARY EVIDENCE ACT 1925 S7(2)

CHILDRENS ACT 1908 PART IV

GERAGHTY V MIN FOR LOCAL GOVT (NO 2) 1976 IR 153

Synopsis:

WORDS AND PHRASES

"Certified reformatory school"

Youth - Detention - Validity - Challenge - Minister of State - Transfer order - Youth transferred from certified industrial school to certified reformatory school - Whether an invasion of judicial domain - No essential difference between schools - (1995/702 SS - Laffoy J. - 15/6/95) 1995 1 I.R. 595 1995 2 ILRM 546

|McM. v. Manager of Trinity House|

1 Judgment of Laffoy J.delivered on the 15th day of June, 1995.

2 The Applicant was born on the 7th March, 1982. He is just over thirteen years old now. By Order of the District Court made on 30th September, 1991 it was ordered that the Applicant, who was then nine and half years of age and who had pleaded guilty to a charge of larceny, be sent to the Certified Industrial School at St. Joseph's, Clonmel, County Tipperary to be there detained until 6th March, 1998. By Order made on 3rd March, 1995 under the official seal of the Minister for Education it was ordered pursuant to Section 69 (2) of the Children's Act, 1908 that the Applicant be transferred from the Industrial School at St. Joseph'sto the Reformatory School at Trinity House, Lusk, Co. Dublin. The Applicant was duly transferred to Trinity House on foot of the Order dated 3rd March, 1995.

3 By Order of this Court made on the 11th day of May, 1995 by McCracken J., on foot of a Motion ex-parte, it was ordered in accordance with Article 40.4 of the Constitution that the manager of Trinity House Reformatory School do produce before this Court on 15th May, 1995 the body of the Applicant and do certify in writing the grounds of his detention and it was further ordered, pursuant to Order 60 of the Rules of the Superior Courts, 1986, that notice be served on the Attorney General. On 15th May, 1995 the deputy director of Trinity House Reformatory School certified that the Applicant was held in custody in Trinity House Reformatory School pursuant to the Order dated 3rd March, 1995. By further Order of this Court made on 18th May, 1995 by McCracken J. it was ordered, by consent, that the Minister for Education be added as a Respondent and that the title of these proceedings be amendedaccordingly.

4 The issue for consideration on this application is whether the detention of the Applicant at Trinity House Reformatory School on foot of the Order dated 3rd of March, 1995 is lawful.

5 Section 69 of the Children's Act, 1908 is contained in Part IV of the Act, which deals with reformatory schools and industrial schools. Subsection (2) of Section 69 provides as follows:-

"The Secretary of State may order -"

6 (a) a youthful offender or child to be transferredfrom one certified reformatory school to another, or from one certified industrial school to another;

7 (b) a youthful offender under the age of fourteen years detained in a certified reformatory school to be transferred to a certified industrial school; and

8 (c) a child over the age of twelve years detained in a certified industrial school, who is found to be exercising an evil influence over the other children in the school, to be transferred to a certified reformatory school;

9 so however that the whole period of the detention of the offender or child shall not be increased by the transfer."

10 In Section 44 of the Act of 1908 the expression "reformatory school" is defined as meaning -

"...a school for the industrial training of youthful offenders in which youthful offenders are lodged, clothed, and fed, as well as taught."

11 The expression "industrial school" is defined in Section 44 as meaning -

"... a school for the industrial training of children, in which children are lodged, clothed, and fed, as well astaught."

12 By virtue of the Children's Act, 1908, Adaptation Order, 1928 (SR&O No. 8 of 1928) the Minister for Educationwas substituted for the Secretary of State in Section 69 (2) of the Act of 1908.

13 It was argued on behalf of the Applicant that the detention of the Applicant in Trinity House on foot of the Order dated 3rd March, 1995 is invalid on the following grounds, namely:

14 (a) That Section 69 (2) (c) of the Act of 1908 is inconsistent with the provisions of the Constitution and did not continue in force after the coming into operation of the Constitution pursuant to Article50;

15 (b) Alternatively, that, if Section 69 (2) (c) is in force, the power thereby conferred on the Minister for Education must be exercised in accordance with the principles of constitutional and natural justice and that power was not so exercised in the making of the Order dated 3rd March, 1995; and

16 (c) That the power conferred by Section 69 (2) (c) must be exercised by the Minister for Education personally and cannot be delegated to an official or, if delegable, must be specifically delegated, and, as no evidence was adduced that the Minister for Education personally considered the matter or specifically delegated the power, the Order dated 3rd March, 1995 was not validly made.

17 As to the question whether Section 69 (2) (c) is inconsistent with the provisions of the Constitution, it is common case that the test to be applied is similar to the test applied by the Supreme Court in TheState (sheerin) -v-Kennedy (1966) I.R. 379, in considering whether Section 7 of the Prevention of Crime Act, 1908, which gave power to the Lord Lieutenant, by adaptation the Minister for Justice, to commute the unexpired residue of the terms of detention of persons detained in a Borstal Institution, who are reported by the visiting committee to be incorrigible or to be exercising bad influence upon the other inmates of the institution, to a term of imprisonment with or without hard labour as the Lord Lieutenant might determine, but in no case exceeding such unexpired residue of the period of detention, was inconsistent with the provisions of the Constitution. In his judgment in that case Walsh J. (at page 394)stated:-

"If there is any essential difference between what is referred to as a term of imprisonment and a term of detention in that institution, then the provisions of Section 7 of the Prevention of Crime Act, 1908, are inconsistent with the provisions of the Constitution relating to the exercise of the judicial power of the State: see the judgment of this Court in Deaton -v- The Attorney General and the RevenueCommissioners; and in such case it would be my opinion that the section was not carried over on the coming into operation of the Constitution. ..... If there is no essential difference between a term of imprisonment and a term of detention, then I think the only portion of the section inconsistent with the provisions of the Constitution is the words "with or" following the words"term of imprisonment", the absence of which would abolish power to commute detention to a term ofimprisonment with hard labour. In my opinion there is no essential difference between detention and imprisonment, and in my opinion, therefore, Section 7 of the Prevention of Crime Act, 1908 was carried over save for the words "with or" which I have referred to. The effect of my opinion is, therefore, that the transfer of incorrigibles from St. Patrick's Institution to a prison may be effected under Section 7 of the Prevention of Crime Act, 1908, on the Order of the Minister for Justice but without the addition of hardlabour....."

18 Both parties agree that the relevant test in determining whether Section 69 (2) (c) is inconsistent with the provisions of the Constitution is whether detention in a reformatory school is essentially different from detention in an industrial school.

19 It was argued on behalf of the Applicant that there is an essential difference between detention in an industrial school and detention in a reformatory school, in that, unlike the situation which prevails in an industrial school, a detainee in a reformatory school is held with youthful offenders who predominately have been found guilty of criminal offences, perhaps, serious criminal offences and who are likely to be of an older age group than persons held in an industrial school. Moreover, detention of a child in an industrial school, unlike detention in a reformatory school, is subject to the provisions of Section 5 of the children (Amendment) Act, 1957, which empowers the Minister for Education, on the application of a parent or guardian, or theDistrict Court on a reference by or an appeal against a refusal of the Minister, to discharge a child from detention in an industrial school, if it is established that the circumstances which led to the detention have ceased and are not likely to re-occur if the child is released and that the parent or guardian is able to support the child. It was submitted on behalf of the Applicant that...