Musueni v Ireland and Others; Amah v Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 02 September 2024
• Neutral Citation: [2024] IEHC 523
• Court: High Court
• Docket Number: 2024 672 JR

Between:

Noah Musueni

David Amah

Applicants

and

Ireland and The Attorney General Director of Public Prosecutions

Respondents

[2024] IEHC 523

2024 672 JR

2024 731 JR

THE HIGH COURT

Challenge to constitutional validity of statutory sentencing for murder - juvenile offender - proceedings relisted

Facts: The judgment was delivered in respect of a challenge to the constitutional validity of the statutory sentencing regime for the offence murder. The challenge centres on the differing treatment afforded to otherwise similarly situated situated juvenile offenders. A juvenile offender who has "aged out" prior to the date of sentencing falls to be sentenced as an adult, with the consequence of a mandatory life sentence in case of murder. The applicants contended that a distinction based on a juvenile offender's age as of the date of sentencing (as opposed to their age as of the date of the commission of the offence) does not advance a legitimate legislative purpose and/or was arbitary, capricious or irrantional. It was further contended that Part 9 of the Children Act 2001 is constitutionally under-inclusive. The Court found that the sentencing regime for an offence of murder does not comply with the guarantee of equality under Article 40.1 of the Constitution of Ireland.

These proceedings were listed for 9 October 2024 to fix a date for hearing submissions on relief.

Appearances

Seamus Clarke SC and Keith Spencer for the first applicant instructed by Connolly Finan Fleming Solicitors

Mark Lynam SC and Oisín Clarke for the second applicant instructed by Connolly Finan Fleming Solicitors

Remy Farrell SC and Joe Holt for the first and second respondents instructed by the Chief State Solicitor

Feichín McDonagh SC and Kieran Kelly for the third respondent instructed by the Chief Prosecution Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 2 September 2024

INTRODUCTION

1 This judgment is delivered in respect of a challenge to the constitutional validity of the statutory sentencing regime for the offence of murder. The principal ground of challenge advanced is that the legislation breaches the guarantee of equality under Article 40.1 of the Constitution of Ireland. The challenge centres on the differing treatment afforded to otherwise similarly situated juvenile offenders depending on their age as of the date of sentencing. A juvenile offender who has “ aged out” prior to the date of sentencing falls to be sentenced as an adult, with the consequence that there is a mandatory life sentence in the case of murder. The applicants contend that a distinction based on a juvenile offender's age as of the date of sentencing (as opposed to their age as of the date of the commission of the offence) does not advance a legitimate legislative purpose and/or is arbitrary, capricious or irrational. It is further contended that Part 9 of the Children Act 2001 is constitutionally under-inclusive.

NOMENCLATURE

2 A “ child” is defined, under the Children Act 2001, as meaning a person under the age of eighteen years. The following shorthand will be employed throughout this judgment to describe the various categories of individuals who may be affected by the sentencing regime under the Children Act 2001.

“ Juvenile offender”: an individual who had committed a criminal offence while under the age of eighteen years. This term will be used irrespective of whether the individual is subsequently sentenced as a child or as an adult.

“ Juvenile trial participant”: a juvenile offender who is still under the age of eighteen years as of the date of their criminal trial.

“ Juvenile detainee” or “ child detainee”: a juvenile offender who is being detained at a children detention school pursuant to a detention order.

“ Convicted child”: a juvenile offender who has been tried and convicted prior to reaching their eighteenth birthday.

“ Aged out child”: a juvenile offender who reached the age of eighteen years prior to their criminal trial and thus cannot avail of most of the safeguards under the Children Act 2001.

PROCEDURAL HISTORY

3 This judgment is delivered in respect of two separate sets of judicial review proceedings. In each instance, the applicant has been charged with an offence of murder arising out of events alleged to have occurred in Blanchardstown, County Dublin on 24 December 2023. Each applicant had been under the age of eighteen years as of the date upon which the alleged offence is said to have been committed. Each applicant has since turned eighteen years of age and is thus no longer a “ child” for the purpose of the Children Act 2001. The applicants will be tried as adults. As such, if either applicant is convicted of an offence of murder, he will be liable to a mandatory sentence of imprisonment for life.

4 It is not necessary, for the resolution of these judicial review proceedings, to rehearse the details of the alleged offence further. It is sufficient to the purpose to record that each applicant represents an “ aged out” child for the purpose of the Children Act 2001, i.e. a juvenile offender who is no longer entitled to avail of many of the statutory safeguards under the Act by dint of their not being a “ child” (as defined) as of the date of their criminal trial.

5 It should be emphasised that each applicant enjoys a constitutional presumption of innocence. The fact of their having pursued these judicial review proceedings should not be misinterpreted as involving any concession on their part. Rather, the proceedings are prophylactic in nature and are intended to address the contingency of a conviction following a fully contested criminal trial.

6 Leave to apply for judicial review was granted, in each set of proceedings, on 1 July 2024. The time for the exchange of pleadings was abridged and the proceedings allocated a priority hearing date of 30 July 2024. Judgment was reserved to today's date.

7 It has been possible to resolve these proceedings on the equality guarantee ground under Article 40.1. It is unnecessary, therefore, to consider the alternative arguments by reference to Article 38.1, Article 40.3 and Article 42A. It is also unnecessary, having regard to the principles in Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71, [2010] 1 I.R. 635, to consider the claim for a declaration of incompatibility under section 5 of the European Convention on Human Rights Act 2003.

LEGISLATIVE REGIME

8 Section 2 of the Criminal Justice Act 1990 provides that a person convicted of murder shall be sentenced to imprisonment for life. Under the Parole Act 2019, a person serving a sentence of imprisonment for life shall not be eligible for parole until they have served at least twelve years of that sentence.

9 The Supreme Court held, in Lynch v. Minister for Justice, Equality and Law Reform [2010] IESC 34, [2012] 1 I.R. 1, that the fixing of a mandatory sentence for murder is constitutionally valid. In doing so, the Supreme Court rejected an argument that the prescription of a mandatory life sentence entailed a usurpation of the powers of the judiciary. See paragraphs 49 and 50 of the reported judgment as follows:

“[…] the Oireachtas in the exercise of its legislative powers may choose in particular cases to impose a fixed or mandatory penalty for a particular offence. That is not to say that legislation which imposed a fixed penalty could not have its compatibility with the Constitution called in question if there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified.

In this case however s. 2 of the Act of 1990 applies to the crime of murder. For the reasons already indicated that crime has always and legitimately been considered to be one of profound and exceptional gravity and, in the court's view, one for which the State is entitled to impose generally a punishment of the highest level which the law permits. Given that it is an offence which is committed when, and only when, a person is unlawfully killed and that the person so doing intended to kill or cause serious injury, it is one which can therefore properly be differentiated from all other crimes, including manslaughter.”

10 As explained below, the Oireachtas has made a related policy choice to exempt a certain class of juvenile offender from the mandatory life sentence otherwise applicable for an offence of murder.

11 Section 156 of the Children Act 2001 provides that no court shall pass a sentence of imprisonment on a child or commit a child to prison. The parties are agreed that the requirement to impose a sentence of imprisonment for life for an offence of murder does not apply in circumstances where a juvenile offender is convicted and sentenced while still a child, i.e. under the age of eighteen years. Although not expressly stated in legislation, this derogation arises as a necessary implication of the interaction between section 156 of the Children Act 2001 and section 2 of the Criminal Justice Act 1990. The prohibition on imprisoning a convicted child for any offence results in the disapplication of the requirement to impose a sentence of imprisonment for life for an offence of murder. Instead, the appropriate sentence for a convicted child is to be determined by reference to the sentencing principles prescribed under the Children Act 2001.

12 The legal position is summarised as follows in Thomas O'Malley, Sentencing Law and Practice (3rd edn, Round Hall 2016) (at §9.57): a child convicted of murder may be sentenced to such period of detention, including life, as the court thinks fit in the circumstances. As O'Malley observes, the failure to make express provision, in the Children Act 2001, for children convicted of murder is surprising.

13 The fact that the Legislature has not expressly addressed the sentencing rules governing a juvenile offender who...