S. v The director of the Garda Juvenile Diversion Programme

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 22 November 2019
• Neutral Citation: [2019] IEHC 796
• Date: 22 November 2019
• Docket Number: 2018 No. 834 J.R.
• Court: High Court

BETWEEN

S. (IDENTITY PROTECTED)

APPLICANT

AND

THE DIRECTOR OF THE GARDA JUVENILE DIVERSION PROGRAMME

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

[2019] IEHC 796

Garrett Simons

2018 No. 834 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Legislative framework – Sexual exploitation of a child – Applicant seeking admission to the Diversion Programme under Part 4 of the Children Act 2001 – Whether a decision not to admit an offender to the Diversion Programme is subject to the same attenuated standard of review as a decision of the Director of Public Prosecutions

Facts: The applicant was charged with a number of offences under the Child Trafficking and Pornography Act 1998. These offences occurred at a time when the applicant had not yet reached the age of eighteen years and was, accordingly, a “child” for the purposes of the Children Act 2001. The Oireachtas put in place a detailed legislative framework under Part 4 of the 2001 Act which provided for the diversion of juvenile offenders from the criminal justice system in certain circumstances (the Diversion Programme). There was a lengthy exchange of correspondence between the solicitors acting on behalf of the applicant and An Garda Síochána. The solicitors addressed each of the statutory criteria governing admission to the Diversion Programme, and outlined why it was said that the circumstances of the applicant’s case fulfilled same. The applicant was interviewed by two Juvenile Liaison Officers (JLOs) from An Garda Síochána. Each of the JLOs prepared a suitability report in respect of the applicant. These reports recommended that the applicant not be included in the Diversion Programme. The investigation file, together with the suitability reports, was then forwarded by a Garda Inspector to the first respondent, the Director of the Garda Juvenile Diversion Programme, who decided that the applicant was unsuitable for inclusion in the Programme. The two principal issues which fell for determination in these proceedings were as follows: first, whether a decision not to admit an offender to the Diversion Programme is subject to the same attenuated standard of review as a decision of the second respondent, the Director of Public Prosecutions; secondly, in the event that the attenuated standard of review does apply, whether intervention by the court by reference to this standard was justified on the facts of the case.

Held by the High Court that a decision by the Programme Director, made pursuant to Part 4 of the 2001 Act, not to admit a juvenile offender to the Diversion Programme is amenable to judicial review. The Court held that such a decision does not attract the attenuated standard of review which is applicable to decisions of the Director of Public Prosecutions. The Court held that the Programme Director is, therefore, required to provide reasons to a juvenile offender who has been denied access to the Programme, if requested. The Court held that this follows from the general principles set out in Mallak v Minister for Justice and Equality [2012] IESC 59. The Court was satisfied that even if the attenuated standard of judicial review were applicable, the peculiar circumstances of this case would have triggered an obligation to state reasons. The Court held that the refusal of the Programme Director to provide reasons in the peculiar circumstances of this case frustrated the High Court’s supervisory jurisdiction by way of judicial review.

The Court proposed making the following orders: (i) an order of certiorari, by way of application for judicial review, setting aside the decisions of 30 July 2018 and 4 September 2018 refusing to admit the applicant to the Diversion Programme; and (ii) an order pursuant to Order 84, rule 27(4) of the Rules of the Superior Courts remitting the matter of the applicant’s admission to the Diversion Programme to the incumbent Programme Director for reconsideration in light of the findings of the Court.

Application allowed.

JUDGMENT of Mr Justice Garrett Simons delivered on 22 November 2019

INTRODUCTION

1 The Oireachtas has put in place a detailed legislative framework under Part 4 of the Children Act 2001 which provides for the diversion of juvenile offenders from the criminal justice system in certain circumstances. In brief outline, juvenile offenders, who have admitted responsibility for their actions, may, instead of being subject to prosecution, be subject to alternative measures including cautions and ongoing supervision. This is described as the “Diversion Programme”. The decision as to whether to admit an individual offender to the Programme is to be made by reference to the statutory criteria prescribed under the Act.

2 These judicial review proceedings present an important issue of principle as to the operation of the Diversion Programme, namely, whether there is ever an obligation to provide reasons for a decision not to admit an offender to the Programme. This issue of principle arises against a backdrop where the Programme Director appears to be operating under an incorrect interpretation of the legislation. The question of interpretation centres on whether the threshold for admission to the Diversion Programme is to be determined by reference to the age of an offender as of the date of the commission of the offence, or, alternatively, their age as of the date when charges are being considered. The Programme Director maintains the mistaken position that once a juvenile offender has reached the age of eighteen years, then he or she cannot be admitted to the Programme irrespective of their age as of the date of the offence.

Counsel on behalf of the Programme Director has informed the court that the Programme is applied to such aged-out offenders on a concessionary basis only, i.e. on a non-statutory or ex gratia basis. There is, however, no affidavit evidence before the court in this regard.

3 The Director of Public Prosecutions, through her counsel, accepts that the Programme Director's interpretation of the legislation is incorrect.

4 Notwithstanding their disagreement as to the interpretation of the legislation, both of the State respondents submit that there is no obligation to provide reasons to an offender who has been denied the benefit of the Diversion Programme. Both State respondents submit that a decision not to admit an offender to the Diversion Programme is subject to the same attenuated standard of judicial review as are decisions of the Director of Public Prosecutions. It is said to follow from this that an obligation to give reasons could only ever arise where mala fides or some improper motive or policy has been demonstrated.

FACTUAL BACKGROUND

5 The Applicant has been charged with a number of offences under the Child Trafficking and Pornography Act 1998. More specifically, the Applicant has been accused of (i) the sexual exploitation of a child; (ii) the possession of child pornography for the purpose of distribution and sale; and (iii) the possession of in excess of 500 images of child pornography.

6 These offences occurred at a time when the Applicant had not yet reached the age of eighteen years and was, accordingly, a “child” for the purposes of the Children Act 2001.

7 The nature of the offences has been set out in detail in the Statement of Opposition filed on behalf of the Director of the Garda Juvenile Diversion Programme (“the Programme Director”). In order to avoid any risk of prejudicing a criminal prosecution, certain details have been deliberately omitted from the brief summary below.

8 The offences came to the attention of An Garda Síochána as a result of a complaint made by the parents of a young male child. It seems that the young child had been engaged in exchanges on social media with another individual. The social media account used by this second individual represented that the account holder was an eleven-year-old girl. (In fact, the account holder was the Applicant, a male aged seventeen years of age). The account holder requested that the young child send certain pornographic images of themselves via the social media app.

9 These matters subsequently came to the attention of the young child's parents, and they made a complaint to An Garda Siochana. Following an investigation, the police traced the social media account to an IP address at the Applicant's family home. The police applied for and executed a search warrant in respect of the family home on a date during the summer of 2017. The Applicant acknowledged that the social media account in question was his, and handed over certain mobile devices to the police. On examination, a mobile phone held by the Applicant was found to contain over 500 images of child pornography.

10 The Applicant indicated through his solicitor that he was accepting responsibility for his criminal behaviour and that he would consent to being cautioned and supervised.

11 The Applicant's parents secured a referral to a clinical psychologist, and the Applicant has attended ever since for regular appointments.

12 The Applicant was formally arrested a number of months later. The Applicant had, by this time, reached the age of eighteen years.

13 There was then a lengthy exchange of correspondence between the solicitors acting on behalf of the Applicant and An Garda Síochána. The solicitors addressed each of the statutory criteria governing admission to the Diversion Programme, and outlined why it was said that the circumstances of the Applicant's case fulfilled same.

14 The Applicant was interviewed by two Juvenile Liaison Officers ( “JLOs”) from An Garda Síochána, Each of the JLOs prepared a suitability report in respect of the Applicant. These reports recommended that the Applicant not be included in the Diversion Programme. The investigation file, together with the suitability reports, was then forwarded by a Garda Inspector to the Programme Director.

15 The...