Murray v Clifford

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 17 December 1993
• Neutral Citation: 1994 WJSC-HC 1485
• Docket Number: No. 2/1993
• Court: High Court
• Date: 17 December 1993

MURRAY v. CLIFFORD

JUDICIAL REVIEW

BETWEEN

VINCENT MURRAY JUNIOR

APPLICANT

AND

JUDGE JOHN P. CLIFFORD, JUDGE BERNARD J. CARROLL AND THEGOVERNOR OF CORK PRISON

RESPONDENTS

1994 WJSC-HC 1485

No. 2/1993

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Sentence

Detention - Duration - Limit - Institution - Youth - Conviction - Indictable offence triable summarily in District Court - Summary trial - Separate statutes providing for the sentencing of youthful offenders - Statutes dealing respectively with imprisonment and with detention - Distinct concepts - Summary Jurisdiction over Children (Ireland) Act, 1884, s. 5 - Criminal Justice Act, 1960, s. 13 - (1993/2 JR - Murphy J. - 17/12/93)

|Murray v. Clifford|

Citations:

SUMMARY JURISDICTION OVER CHILDREN (IRL) ACT 1884 S5

SUMMARY JURISDICTION OVER CHILDREN (IRL) ACT 1884 S5(1)

CHILDREN ACT 1941 S28

CRIMINAL JUSTICE ACT 1951 S2

CLINCH, STATE V CONNELLAN 1985 IR 597

CRIMINAL JUSTICE ACT 1960 S13

CRIMINAL JUSTICE ACT 1960 S13(2)

PRISONS ACT 1970 S5

AG V BOYLAN 1963 IR 238

CRIMINAL JUSTICE ACT 1951 S5

CRIMINAL JUSTICE ACT 1960 S13(1)

PRISONS ACT 1970 S2

1 Judgment of Mr. Justice Francis D. Murphydeliveredthe 17th day of December 1993.

2 The Applicant's claim herein raises the question whether a Judge of the District Court on convicting a young person of 16 years of age in respect of an indictable crime tried summarily may sentence the accused to be detained in St. Patrick's Institution for a period exceeding threemonths.

3 The jurisdiction to impose a sentence of imprisonment on a young person convicted of an indictable offence tried summarily is set out in Section 5 of the Summary Jurisdiction over Children (Ireland) Act 1884. That section has been helpfully explained and authoritatively interpreted by the Supreme Court in Hutch and The Governor of Wheatfield Prison (judgment dated the 17th November, 1992).

4 Section 5(1) of the 1884 Act provides as follows:-

"Where a young person is charged before a Court of summary jurisidiction with an indictable offence specified in the schedule to this Act, the Court, ifthey think it expedient so to do, having regard to the character and antecedents of the person charged, the nature of the offence and all the circumstances of the case, and if the young person charged with the offence when informed by the Court of his right to be tried by a jury consents to be dealt with summarily, may deal summarily with the offence and in their discretion adjudge such person, if found guilty of the offence, either to pay a fine not exceeding ten pounds, or to be imprisoned, with or without hard labour, for any term not exceeding three months......"

5 The Childrens Act 1941, Section 28 altered the definition of "young person" so as to provide that it should mean "a person who in the opinion of the Court before whom he is brought is of the age of fifteen years and under the age of seventeenyears".

6 On the basis of the legislation quoted above, it is clear beyond debate that a young person so defined (including in particular a youth of sixteen years of age) could not be sentenced to a term of imprisonment exceeding three months on conviction summarily of an indictableoffence.

7 In Hutch's case a young person, Edward Hutch, was summarily convicted of an indictable offence and sentenced by the Judge of the District Court to imprisonment for one year on each of three separate charges, two of the sentences to run concurrently. The Director of Public Prosecutions sought to justify the sentence to a term of imprisonment for a period exceeding three months by relying upon the provisions of the Criminal Justice Act 1951,Section 2. That section extended greatly the jurisdiction of the District Court totry summarily persons charged with indictable offences. The section was expressed in general terms. It related to a wide range of indictable offences and was not in its terms directed to any particular category of defendant. Moreover the limitation on the duration of the sentence which a Judge of the District Court might impose where an accused was tried pursuant to the jurisdiction conferred on the District Court by that section was twelve months. It followed that if, as the Director of Public Prosecutions had argued, Section 5 of the 1884 Act had been expressly or impliedly repealed by Section 2 of the 1951 Act, the limitation imposed on the Judge of the District Court by Section 5 aforesaid would cease to have any application.

8 As the Chief Justice in delivering the judgment of the Supreme Court demonstrated, the 1951 Act did not purport to amend Section 5 of the 1884 Act. In the absence of an express provision to that effect he identified the arguments available to the Director as follows:-

9 (1) Whether, the provisions of Section 5(1) of the Act of 1884 were impliedly repealed by the provisions of Section 2 of the Act of1951.

10 (2) Whether, if the provisions of Section 5(1) of the Act of 1884 were not so repealed, there was a parallel or alternative jurisdiction in the District Court to try summarily persons between the age of fifteen and seventeen years charged with an indictable offence contained in the first schedule to the 1951 Act; the one under Section 5(1) of the 1884 Act and the other under Section 2 of the 1951 Act.

11 The Supreme Court rejected both arguments.

12 In his judgment the Chief Justice pointed out that the Act of 1884 was an Act specifically and exclusively dealing with young people, whereas the 1951 Act was a major departure in the jurisdiction of the District Court conferring a wide jurisdiction to try indictable offences summarily and that the jurisdiction as so conferred was determined entirely by the nature of the offence and the view of the Court as to whether it constituted a minor or more serious offence. The 1951 Act was not directed to the age or character of the accused. The contention that the earlier Act was repealed by the later one was accordingly rejected on the basis of the maxim of interpretation expressed in the phrase "generalia specialibus non derogant".

13 The Court disposed more quickly of the issue as to whether there was vested in the District Court a parallel or optional jurisdiction to proceed either under the 1884 Act or the 1951 Act when dealing with a young person. The Chief Justice noted that in the event of jurisdiction being exercised under the 1884 Act, the period of imprisonment which could be lawfully imposed was limited to three months and this was clearly a beneficial provision established for a young offender and a very definite and important right. He therefore concluded (and I would respectfully agree) "that to hold that the legislature without acknowledging or referring in any way to that important right placed upon it an optional cancellation or abandonment by the Statute of 1951 would appear to be quite impossible".

14 There can be no doubt that a Judge of the District Court cannot imposed on a young offender a term of imprisonment in excess of three months byinvokingjurisdiction under Section 2 of the 1951 Act or indeed by any other means of which I am aware. However, that does not dispose of the issue as to the jurisdiction of the District Court to impose a detention in St. Patrick's Institution or any other place of detention.

15 The jurisdiction to direct detention in St. Patrick's Institution is conferred by Section 13 of the Courts of Justice Act 1960 in the followingterms:-

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