A man who allegedly robbed a shop when he was 17 but was not charged until he was an adult has lost a Supreme Court appeal that claimed he was discriminated against by a law providing that Children’s Court judges can summarily dispose of cases without consent from the Director of Public Prosecutions (DPP).
The plaintiff is alleged to have participated in the robbery of a shop in April 2019, when he was 17 years old.
He was almost 20 years old when the DPP directed his prosecution over the alleged incident in February 2022. The matter first came before the District Court in March 2022.
An adult at the time the criminal proceedings were initiated, the plaintiff was excluded from the provision in section 75 of the Children’s Act 2001, which allows a Children’s Court judge to deal summarily with any child charged with most indictable offences.
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District Court judges can deal with minor offences summarily without the need for a full trial. Indictable offences are charges which can or must be tried before a judge and jury.
Under the Children’s Act, the Children’s Court judge does not require the consent of the DPP to dispose of a case in this manner. When an accused is an adult, DPP consent is normally required for summary disposal.
In the plaintiff’s case, the DPP elected to have him sent forward for trial in the Circuit Court.
The delay in charging the plaintiff was attributed to an investigating garda’s absence from duty due to an injury, as well as difficulties in making contact with the plaintiff.
In the High Court and the Supreme Court, the plaintiff claimed his exclusion from the Children’s Act provision, due to his turning 18 before the criminal proceedings began, was discriminatory, and a breach of his rights under Article 40 of Bunreacht na hÉireann.
He sought a court order stopping the prosecution, or alternatively, an order limiting potential sentences imposed to those which can be handed down by the District Court.
His case was dismissed by the High Court, and he appealed directly to the Supreme Court.
In a majority judgment delivered on Tuesday, Judge Iseult O’Malley dismissed the man’s appeal, upholding the High Court’s decision.
The judge said that children have a lesser culpability for criminal behaviour than adults, and that culpability is fixed as of the date of offending – regardless of the age of the offender when the case goes to trial.
She said any sentence imposed on an adult for an offence committed as a child “must reflect that lesser culpability”.
She said it was wrong to assume the Circuit Court must impose a higher sentence than that which would be imposed in the District Court.
A sentencing judge must take account of an offender’s personal circumstances, which, the judge noted, will change when an offender grows older.
“[T]he unavoidable fact that people change as they grow up does not mean that the offender can or should be sentenced as if still a child. The sentence is imposed for an offence committed by a child, but it has to take account of the person as they are at the time of sentence,” the judge said.
The Section 75 provision “creates a special procedure for children for legitimate purposes,” the judge said.
“Those purposes include the reduction of the stress experienced by children in the criminal justice process. They also include the expediting of the process in order to make the purpose of the process more comprehensible to children. Perhaps most importantly, the section enables access to the range of sentencing measures available in respect of children,” the judge said.
In those circumstances, she said that the distinction drawn between adults and children in section 75 of the Children’s Act is for legitimate purposes, and not irrational.
Chief Justice Donal O’Donnell, Judge Elizabeth Dunne, Judge Brian Murray and Judge Maurice Collins agreed with O’Malley’s judgment.
In a dissenting judgment, Judge Gerard Hogan held that section 75 of the Children’s Act operates in an unfair and arbitrary fashion, contrary to Article 40 of the Constitution.
Under the current legislation, a juvenile offender can be deprived of the benefits of section 75 and exposed to a potentially higher range of sentences simply by reason of the date which criminal proceedings are initiated, the judge said. Initiation of proceedings is, to some degree, outside the direct control of the accused.
Judge Séamus Woulfe agreed with Hogan’s judgment.
