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Cite as: [1997] IEHC 153, [1999] 3 IR 254

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D.P.P. (Murphy) v. P.T. [1997] IEHC 153; [1999] 3 IR 254 (24th September, 1997)

THE HIGH COURT

1997 No. 1061ss

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA EUGENE MURPHY)

PROSECUTOR

AND

PETER THORNTON

ACCUSED

CONSULTATIVE CASE STATED

Judgment of Mrs Justice McGuinness delivered on the 24th day of September 1997

This is a consultative case stated pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961 by District Judge James Paul McDonnell, a Judge of the District Court assigned to the Dublin Metropolitan District. The case is stated on the Court's own motion and arises from criminal proceedings against the Accused, Peter Thornton, in The Children's Court, Smithfield, in the city of Dublin. The Accused was born on 4th December, 1981 and is now 15 years of age.

1. The consultative case stated arose from an Order made by the District Judge on the 11th day of April 1997. The case stated by the learned District Judge is dated the 30th day of June 1997 and the matter came on for hearing before me on the 24th day of July 1997. Since the Accused had been remanded in custody pending the reply of this Court to the questions posed in the case stated, I considered the matter to be one of urgency. Accordingly in a brief ruling given on the 30th day of July 1997, I provided replies to the questions posed by the learned District Judge. However, I considered that the matters of law which were set out by the District Judge and which arise from the case stated by him were of general importance, reaching beyond the factual situation obtaining in the trial of the present Accused. I therefore wished to set out in full the reasoning behind, and the context of, the answers given. Accordingly, I reserved such fuller consideration of the matter until today.

2. The facts set out by the learned District Judge in the consultative case stated may be summarised as follows:

3. At a sitting of The Children's Court held at District Court No 25, Smithfield, in the City of Dublin, on the 4th day of April, 1997 the Accused, Peter Thornton, appeared before Judge Clare Leonard to answer the charge of larceny of a sports jacket, value £30 from a shop in Henry Street, in the City of Dublin, contrary to Section 2 of the Larceny Act, 1916 (as amended), and the alternative charge of handling that property, knowing or believing it to be stolen property, contrary to Section 33 of the Larceny Act, 1916 (as amended). The charges were set out on Store Street charge sheet J148 of 1997 and a copy of that charge sheet was attached to the case stated.

4. At that hearing Judge Clare Leonard established that the Accused was aged some 15 years of age and was resident in Tabor House, 70 Seville Place, Dublin 1. The Accused was accompanied by a member of staff of Tabor House, but not by any member of his family. No member of the Accused's family has been present at any hearing since that date. Judge Leonard granted legal aid to the Accused and assigned Mr Michael Staines, Solicitor, to represent the Accused. The Accused was then remanded upon continuing bail to Court No 25 on the 11th day of April, 1997.

5. On 11th day of April, 1997 the Accused appeared on the said charges before District Judge James Paul McDonnell. He was again accompanied by a member of the staff of Tabor House. The Accused was represented by Ms Caroline Butler of Messrs Michael Staines & Co, Solicitors. So far as the criminal proceedings were concerned, it appears that evidence of arrest, charge and caution was given, but that to date no further steps have been taken in regard to dealing with the actual charges before the Court.

6. Ms Sinead Flynn, the member of staff of Tabor House, handed into Court a report concerning the Accused's placement in Tabor House. The District Judge then ascertained that the Accused was, under the name of Michael Ward, the subject of a Fit Person Order made by The Children's Court on the 11th day of January, 1990, when he was committed to the care of the Eastern Health Board. The Fit Person Order is attached to the case stated. The Order was made pursuant to the Children Act, 1908 to 1989. (While no section is recited on the face of the Order, it appears to me from the wording of the Order itself that it is made pursuant to Section 58(1)(b) of the Children Act 1908 (as amended) - the ground being that he was found having a parent who did not exercise proper guardianship.) The Fit Person Order remains in force until 3rd December, 1997, unless sooner revoked or varied.

7. The District Judge decided to request the assistance of the Solicitors for the Eastern Health Board and adjourned the hearing until the afternoon of that day for the purpose of hearing the said Solicitors.

8. On the afternoon of 11th April, at the adjourned hearing, Ms Anna Crossan, of Messrs Roger Greene & Sons, Solicitors, appeared on behalf of the Eastern Health Board. She was accompanied by Sinead Flynn of Tabor House and John Rynne both of whom are Eastern Health Board Social Workers. With the consent of the parties the District Judge adjourned the proceedings into chambers as he stated that he did not wish the Accused to be present while his medical and psychiatric condition was discussed. In the course of the conference in chambers, the District Judge was furnished with three further documents in addition to the one already furnished to him by Sinead Flynn. The four documents are attached to the case stated and are as follows:

1. A report dated 28th January, 1997 by Sinead Flynn, Manager of Tabor House, the Tabor Society.

2. A report dated 6th March, 1997 by Dr Michael Fitzgerald, Consultant Child Psychiatrist, who is employed by the Eastern Health Board.

3. Minutes of a case conference held on the 13th March, 1997, in Dr Steevens' Hospital (the headquarters of the Eastern Health Board). These minutes are signed by Ms Brid Clarke, Director of Child Care and Family Support Services with the Eastern Health Board.

4. The undated report from the Tabor Society handed into Court on the morning of 11th April, 1997.

9. With the consent of the defence Solicitors the contents of the four reports was considered by the Court and the District Judge sets out in the case stated the general conclusions he drew from them as to the psychiatric condition of the Accused. He also sets out his opinion of the assessment and general care of the Accused by the Eastern Health Board. The Accused was then remanded in custody to Oberstown Boys Centre until 18th day of April, 1997 when he was to appear again at Court No 25. The Court also made the following Order:-

"The Court directs the Eastern Health Board, (a fit person having the care of this boy on foot of a Court Order made in January 1990) to submit its proposals to this Court for a secure residential assessment to confirm a preliminary diagnosis of Aspergers Syndrome, (or such other diagnosis as may be warranted), and thereafter a care programme while he continues in the care of the Eastern Health Board, - and if necessary - such assessment to be carried on outside the jurisdiction of these Courts."

10. In conformity with the requirements of Section 123 of the Children Act 1908 the Court established, upon sworn testimony, that the date of birth of the Accused was 4th December, 1981. No determination has yet been made either by the election of the Accused or by the Court as to whether the charges against the Accused should be tried upon indictment or summarily.

11. At the adjourned hearing on 18th April, 1997 the District Judge states that Counsel on behalf of the Eastern Health Board made a number of submissions to him which are set out in the case stated. Since the same matters arose before this Court there is no need to detail the submissions at this point. Suffice it to say that Counsel for the Eastern Health Board submitted that the District Court did not possess the jurisdiction to make child-care directions in the course of a criminal prosecution of a juvenile, that the Eastern Health Board was already dealing with the special needs of the Accused, and that the Eastern Health Board was not prepared to submit to the Order of the District Court made on the 11th April, 1997.

12. The Solicitor for the Accused made a number of submissions on his behalf as follows:

1. She expressed no opinion on the submissions made by Counsel for the Eastern Health Board.

2. She stated that the Accused may have to seek to involve the Eastern Health Board by applying directly to the High Court.

3. The Eastern Health Board had not provided the Accused with an appropriate residence.

4. The Accused wished to be released from detention in Oberstown Boys Centre, and to return to Tabor House. He promised to behave himself if so released on bail.

13. No submissions were made on behalf of the prosecution by the prosecuting

Garda.

14. The learned District Judge then himself raised the question of the Accused's fitness to plead. (This question had apparently not been raised by the Accused's own Solicitor.)

15. In the case stated the learned District Judge then sets out the legal background to the power of the District Court to conduct an enquiry into the fitness to plead of an Accused - to which I shall refer at a later stage. He then sets out his decision to state a case to this Court as follows "In the light of the fundamental challenge by the Eastern Health Board to the discharge of its constitutional obligation to take all necessary steps for the conduct of a sworn enquiry as to the condition and capacity of this Accused - and having regard to the refusal by the Eastern Health Board to submit to the Order made by this Court on the 11th day of April, 1997, - I determined to submit a consultative case stated for the opinion of the High Court on the following questions of law: (a) whether I was entitled in law to make the Order of the 11th day of April, 1997? and (b) whether the Eastern Health Board was obliged, in law, to comply with the Order of the 11th day of April, 1997. At the hearing before me on the 24th July, 1997 submissions were made by Counsel for the Accused, Counsel for the Eastern Health Board and Counsel for the Director of Public Prosecutions. The submissions dealt with the jurisdiction of the District Court to require the attendance of the Eastern Health Board and to make Orders binding on the Eastern Health Board in the course of criminal proceedings against the Accused. More broadly they dealt with the extent to which, in the course of criminal proceedings against the Accused, the District Court could embark upon an enquiry into the general welfare of the Accused, the quality of his care by the Eastern Health Board and the plans for his care by the Eastern Health Board until he reached the age of 16 years.

16. Senior Counsel for the Accused, Mr Durcan submitted that under the terms of the Fit Person Order made on the 11th January, 1990 the Eastern Health Board came within the definition of "guardian" set out in Section 131 of the Children Act 1908 and that accordingly the District Judge had power under Section 98 of that Act to require the attendance of the Eastern Health Board before the Court hearing and determining the criminal charges. The District Judge also had power under Section 98(3) of the 1908 Act to make Orders against the Eastern Health Board as guardian.

17. He submitted that the District Judge was clearly correct in law in raising the question of the Accused's fitness to plead and in embarking upon an enquiry as to his fitness to plead or his fitness to elect as to whether he should be tried summarily or on indictment.

18. As regards the matter of the broader question of the enquiry by the District Judge into the Accused's general welfare and the giving of Orders covering the Eastern Health Board's future care plan for the Accused, Counsel for the Accused submitted that the Court had a constitutional duty to vindicate the Accused's right to have his welfare promoted. He referred to the definition of the constitutional rights of the child as set out by O'Higgins C.J. in the case of G -v- An Bord Uachtala [1980] IR32 at page 55 to 56 and to the discussion of the duty of the Court to care for the welfare of the child in proceedings under the Children Act 1908 which was contained in the judgment of the Supreme Court (O'Flaherty J.) in the case of F -v- Superintendent of Ballymun Garda Station and Others

( [1990] ILRM 767). He also submitted that the proceedings before the District Court were governed by Section 3 of the Guardianship of Infants Act 1964 and that the issue of the welfare of the Accused child was therefore the paramount issue before the Court. The Court's obligation to uphold the constitutional rights of the child was binding in all cases whether civil or criminal.

19. Counsel for the Eastern Health Board, Mr McEnroy, submitted that in the instant case, as in all cases involving children in their care, the Eastern Health Board was perfectly willing to make all necessary and relevant information available to the District Court - and indeed that the Board had done so by 11th April, 1997. He submitted that the distinction between criminal cases and child care cases should not be overly blurred and that "child care type Orders" should not be made in the course of criminal proceedings. He accepted that the Court had a duty to vindicate the constitutional rights of the child but submitted that the issue before the Court in the instant case was the guilt or innocence of the Accused and that the Accused had a constitutional right to a reasonably expeditious trial in due course of law. There was a danger that the course embarked upon by the District Judge would result in an indefinite stay on the criminal proceedings with lengthy remands of the Accused in custody, while the Court carried out a child care enquiry. He suggested that the criminal proceedings were not the focus of the District Judge's concern in his conduct of the instant case. Mr McEnroy also stressed the role of the Probation Officer as a source of reports, information and assessments in The Children's Court when criminal charges were brought against children.

20. Counsel for the Director of Public Prosecutions, Mr McDonagh, stressed the fact that the issue before the District Court was that of the Accused's fitness to plead or to elect whether he would be tried summarily or on indictment. He accepted that the Probation Officer could well have a role in providing the Court with information as to whether the Accused was fit to plead, but he felt that the District Judge was entitled to seek information from other sources.

21. From the case stated and from the submissions made by Counsel, a number of matters emerge very clearly.

22. Firstly, while it may well be more usual for the issue of fitness to plead to be raised by the Defence in criminal proceedings, it was clearly open to the District Judge to raise this issue of his own Motion. Given the information which had been put before him by both Tabor House and by the Eastern Health Board it seems to me that he had in fact a duty to do so and was acting perfectly correctly in so doing.

23. As is set out by the learned District Judge himself in the case stated, the power of the District Court to carry out an enquiry into an Accused's fitness to plead is fully established in the cases of State (C) -v- The Minister for Justice [1967] IR 106 and O'C -v- Judges of the Dublin Metropolitan District [1994] 3IR 246.

In State (C) -v- Minister for Justice the Supreme Court held that it is for the Court that has seisin of a criminal matter (in that case the District Court) to determine whether or not the Accused is suffering from insanity of such a character as to render him unfit to stand his trial. At page 114-5 of the report Ó'Dálaigh C.J. stated:-

"It may be noted that the offence charged against the appellant under the Larceny Act 1916 is a scheduled offence within the Criminal Justice Act, 1951 and could be disposed of summarily by the District Justice; and it may also be noted that the provisions of Section of that Act, providing for the disposal in the District Court of indictable offences on a plea of guilty, might, in any event, be applied to all the charges here in question.

When a prisoner is being tried on indictment the Registrar of the Court, as soon as the indictment has been read out, demands of the prisoner 'how say you; are you guilty or not guilty?' at this point the question of the Accused's fitness to plead or stand his trial arises. The nature of the insanity which excuses the prisoner from standing trial is examined in a number of cases. Stated in general terms the test to be applied is, has the prisoner sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence, to challenge a juror to whom he may wish to object, and to understand the details of the evidence: see Rex -v- Pritchard : Rex -v- Dyson : the Queen -v- Berry : Rex -v- Governor of Stafford Prison . A jury is empanelled to try the issue . This test, mutatis mutandis, is applicable in the case of District Court proceedings, whether on summary trial or by way of preliminary investigation. There can be little doubt that a District Justice must stop short if he is satisfied that the Accused is insane in the sense already explained and this no less in a preliminary investigation than in a summary trial. On a preliminary investigation an accused person has important rights, which he must be in a position to exercise if the preliminary investigation is to be a valid basis for his return for trial. From the foregoing it will be plain that the range of insanity entitling an Accused to avoid trial is quite limited."

24. The learned Walsh J. said (at page 120 to 121) "it appears to me that if a District Justice, whether conducting a preliminary investigation or the summary trial of any criminal matter, comes to the conclusion upon proper evidence that the Accused person is by reason of unsoundness of mind in a condition which may be described shortly as 'unfit to plead,' he cannot proceed with the hearing of the matter while the Accused is in that condition and that if he did so, in a case where the evidence was such that no other reasonable view was open save that the Accused was unfit to plead, the proceedings would be quashed. It is furthermore quite clear that if the Justice is satisfied that the Accused person is in that condition, then the Accused is not in a condition to consent to the proceedings going on or to consent to the summary trial of an indictable offence under the provisions of the Criminal Justice Act, 1951.......

If an Accused person is not 'unfit to plead', he must stand his trial or undergo the preliminary investigation in the District Court, and the only person who may decide that is the District Justice who has seisin of the case. It is, therefore, possible for a person who is suffering from a disease of the mind to be tried and convicted both in the District Court and upon trial on indictment, because the exemption from trial for insanity is limited to the cases where the disease is such that the person is 'unfit to plead'."

In O'C -v- The Judges of the Dublin Metropolitan District the Supreme Court upheld a decision of O'Hanlon J. in the High Court. In that case the Supreme Court held that the proper point for the holding of an inquiry into the fitness to plead of the Accused was at the preliminary examination in the District Court. In his judgment on behalf of the Court Finlay C.J. (at page 251 to 252) dealt both with this issue and with the course to be taken by the District Court as follows:-

"A preliminary examination pursuant to the Act of 1967 is clearly, as was decided both in the State (C) -v- the Minister for Justice and Costello -v- The Director of Public Prosecutions and the Attorney General [1984] ILRM 413, a judicial exercise of considerable importance in a criminal matter to the accused person, as well as to the public. It is the only method by which, in the absence of a waiver of it by an accused person fully informed and capable of waiving it, a person can be put on indictment in any Court other than the Special Criminal Court. Under those circumstances it is quite clear in my view that it would be constitutionally quite impermissible that such a proceeding could go forward in circumstances where a person, through no fault of his own, was incapable of following the proceedings as they went, and of giving instructions in regard to the rights which an accused person has on such preliminary investigation. That constitutional impermissibility of such a proceeding outweighs all considerations that have been put forward in my view as to the possible benefits (and they are only possible there being alternative disadvantages also a possibility), arising from the postponement of the issue. In order to postpone the trial of the issue a Judge of the District Court would be asked or directed to carry out a preliminary investigation in the knowledge that it was quite likely that the accused person who would be very importantly affected by it was incapable of understanding it or following it. Such a procedure is in my view quite inconsistent with the constitution and as such cannot be permitted.

I have no doubt therefore that this Appeal must be dismissed and for greater clarity, since we have been asked, I would point out that what should now happen is that the matter should be returned to the District Court and that a Judge of the District Court should, on oral evidence, carry out an investigation as to whether he is satisfied that the accused man is fit, notwithstanding his condition, to understand and follow the proceedings in the District Court and to give real and valid instructions to his Solicitor and Counsel in regard to their defence of him in those proceedings. If his conclusion is that he is so fit, then of course the preliminary examination will continue in the ordinary way. If his conclusion is that he is not so fit, in my view, he must decline to enter upon the preliminary examination and should make no order of any description with regard to the further attendance of the Accused or with regard to his custody."

25. It also appears to me that Mr Durcan is quite correct in his submissions in regard to Sections 131 and 98 of the Children Act, 1908. These sections form part of Part V of that Act, which is entitled Juvenile Offenders, and deals with criminal proceedings against children. What might be described as the child care provisions of the 1908 Act are contained in part II, entitled Prevention of Cruelty to Children and Young Persons, and it is these part II provisions which have now been replaced by the Child Care Act 1991. As yet the Oireachtas has not enacted a modern statute codifying the treatment of young offenders. It is to be hoped that such legislation will not be too long delayed, but for the present Part V of the 1908 Act as amended from time to time, continues to apply.

26. Section 131 is a general definition section and defines "guardian" as follows:-

"The expression guardian, in relation to a child young person or youthful offender, includes any person who, in the opinion of the Court having cognisant of any case in relation to the child, young person, or youthful offender, or in which the child, young person, or youthful offender is concerned has for the time being the charge of or control over the child, young person, or youthful offender."

27. Given the existence of the fit person order of 11th January, 1990, the Eastern Health Board certainly comes in with this definition of "guardian" and will continue to do so until the expiry of the fit person on 3rd December,1997, when the Accused reaches the age of sixteen.

28. Section 98 of the 1908 Act provides as follows:-

"98(1) Where a child or young person is charged with any offence, or where a child is brought before a petty sessionary court on an application for an order to send him to a certified industrial school, his parent or guardian may in any case, and shall if he can be found and resides within a reasonable distance and the person so charged or brought before the court is a child, be required to attend the Court before which the case is heard or determined during all the stages of the proceedings, unless the Court is satisfied that it would be unreasonable to require his attendance.

(2) Where the child or young person is arrested, the constable by whom he is arrested or the officer of police in charge of the police station to which he is brought shall cause the parent or guardian of the child or young person, if he can be found, to be warned to attend the Court before which the child or young person will appear.

(3) For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling Orders to be made against him, rules may be made under Section 29 of the Summary Jurisdiction Act, 1879 for applying, with the necessary adaptations and modifications, such are the provisions of the Summary Jurisdiction Acts and the indictable offences Act, 1848 as appear appropriate for the purpose and such rules may provide for a summons to a child or young person including a summons to his parent or guardian.

(4) The parent or guardian whose attendance shall be required under this Section shall be the parent or guardian having the actual possession and control of the child or young person: provided that if that person is not the father, the attendance of the father may also be required.

(5) The attendance of the parent of a child or young person shall not be required under this Section in any case where the child or young person was before the institution of the proceedings removed from the custody or charge of its parent by an Order of a Court of Justice."

29. From this Section it is clear that the District Judge has power to require the attendance of the Eastern Health Board at the Court before which the Accused is charged with the offences set out in the charge sheet. The attendance of the Eastern Health Board may be required at all stages of the proceedings and the Court has the power to make Orders binding on the Board. Such Orders, however, must be Orders which arise in the course of and relevant to the actual proceedings before the District Court.

30. At this point there can, it seems to me, be no doubt

(a) That the District Judge is acting correctly and within his jurisdiction in carrying out an enquiry as to whether the Accused is fit to plead, and

(b) That the District Judge has the power to require the attendance of the Eastern Health Board to attend at all stages of the proceedings before him against the Accused; and

(c) That the District Judge has jurisdiction to make Orders binding on the Eastern Health Board requiring the Board to provide information and/or to carry out an assessment of the Accused with a view to assisting the District Judge's enquiry into the Accused's fitness to plead.

31. The question put to this Court, however, goes somewhat further. The Order made by the District Judge on the 11th April, 1997 was not limited to the issue of the Accused's fitness to plead - and on the facts set out in the case stated that particular issue was not raised by the District Judge until the 18th April, 1997. What the Order actually directs the Eastern Health Board to do is to

"submit its proposals to this Court for a secure residential assessment to confirm a preliminary diagnosis of Aspergers Syndrome (or such other diagnosis as may be warranted) and thereafter a care programme for this boy while he continues in the care of the Eastern Health Board."

32. Apart from the actual making of the Order it is clear from the history of the matter as set out in by the District Judge in the case stated that on 11th April he had embarked on what amounted to a general enquiry as to the medical and psychiatric condition of the Accused and as to the quality of the care being provided for him by the Eastern Health Board. At paragraph 6 of the case stated the learned District Judge sets out the reports which he studied in regard to the Accused and goes on to state:

"It was suggested by those reports to the Court that the assessment and care plan which had been put in place by the Eastern Health Board was seriously deficient, and that he was in grave danger of being criminalised for delinquent behaviour associated with an impaired moral capacity and an impaired personal development."

33. I would accept the submission of Mr. McEnroy that this amounts to a finding by the District Judge against the Eastern Health Board in regard to the general care and welfare of the Accused. I also believe that an Order directing the Eastern Health Board to submit proposals " for a secure residential assessment" and "thereafter a care programme for this boy while he continues in the care of the Eastern Health Board" goes considerably beyond what would be required to enable the Court to carry out an enquiry into the Accused's fitness to plead.

34. Mr. Durcan submits that such a general enquiry is justified by the Court's duty to vindicate the constitutional rights of a child in any case, whether civil or criminal. In submitting this he has relied on both statute law and on decided cases. This Court would of course accept that all Courts have constitutional duties to any child who appears before it, but there is, I feel, a certain danger in calling in aid sections of statutes and dicta contained in earlier judgments without carefully considering the context in which they are set.

35. Mr. Durcan refers me to Section 3 of the Guardianship of Infants Act, 1964, which, he says, establishes the well known principle of the paramountcy of the welfare of the child. It is indeed a well known and well established principle and it is explicitly carried over into other statutes such as the adoption Act, 1974 Section 2, the Family Law Act, 1995 Section 6 and 10, the Family Law (Divorce) Act, 1996 Section 5(2) and more particularly, the Child Care Act, 1991 Section 3(1) and (2).

36. The actual wording of Section 3 of the Guardianship of Infants Act, 1964 is as follows:

"Where in any proceedings before any Court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question the Court, in deciding that question , shall regard the welfare of the infant as the first and paramount consideration". (my emphasis).

37. Where the principle underlying the Section, the parmountcy of the welfare of the child, is carried over into legislation dealing with adoption, with judicial separation, with divorce or with child care, it is clearly being applied in proceedings dealing with "the custody, guardianship or upbringing of an infant".

38. On the wording of the Section, however, I very much doubt whether it can be directly carried over to apply to criminal proceedings against an Accused who is a fifteen year old minor.

39. Again, Counsel for the Accused has referred the Court to the classic statement of the constitutional rights of the child set out in the judgment of O'Higgins C.J. in G. -v- An Bord Uachtala [1980] IR 32 at 55-56:-

"The Child's Rights

The child also has natural rights. Normally these will be safe under the care and protection of its mother. Having been born, the child has the right to be feed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42 Section 5 of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons. In the same way, in special circumstances the State may have an equal obligation n relation to a child born outside the family to protect that child, even against its mother, if her natural rights are used in such a way as to endanger the health or life of the child or to deprive him of his rights. In my view this obligation stems from the provision of Article 40 Section 3 of the Constitution."

40. This statement of the child's constitutional rights is binding on me, as it is on the District Judge in this case. But these rights are set out by the learned O'Higgins C.J. in the context of the possible adoption of an unrepresented one year old child. It is open to the Accused to assert these rights in proceedings pursuant to the Child Care Act, 1991 or, for example, in judicial review proceedings against the Eastern Health Board. The legislature has responded to the establishment of these constitutional rights of the child by the enactment of the various adoption acts, by the provisions as to child custody in the various Family Law Acts, and above all by the enactment of the Child Care Act, 1991. Can these constitutional rights, however, be asserted so as to negative or interfere with other constitutional rights which are an inherent and crucial part of the criminal jurisdiction such as for example the right to liberty, the right to a trial in due course of law or the right to a reasonably expeditious trial?

41. I have also been referred to the judgment of the supreme Court (O'Flaherty J.) in the case of F.-v- Superintendent of Ballymun Garda Station and Others . In that judgment the learned O'Flaherty J. deals with the provisions of part II of the Children Act 1908 at page 772 of the judgment he states:-

"In a ruling at the commencement of the hearing the Court reaffirmed the strictness of the rule against giving a decision on a moot, but recognised that cases concerning the care and custody of children and the protection of their rights are in a special and, possibly, unique categor y. Certainly, they are special because they concern children and are possibly unique in that the fundamental rights of persons are in issue in litigation in which they are not represented . The absence of provision for such representation has been the subject of comment in this Court in the past but there is no provision, financial or otherwise, for it.

In these circumstances, in my judgment, it is proper that this Court should give a decision which will be as helpful as possible to all those concerned with the welfare of children, including parents, social workers, gardai, other members of the judiciary, and the legal profession in general...... While the Children Act, 1908 may have been an enlightened piece of legislation when it was enacted it is now showing its age. Unless and until new legislation is introduced this Court must determine how it aligns with the constitution and with other legislation governing the welfare of children. Providing the Act has the correct mechanisms it does not matter if some of its language may be in archaic terms. Mr Justice Lavery once defined 'practice and procedure' to mean 'the manner in which, all the machinery whereby, effect is given to a substantive power which is either conferred on a Court by statute or inherent in its jurisdiction': The State (O'Flaherty) -v- O'Floinn [1954] IR 295 at 304. By parity of reasoning the provisions that the Court now has to construe may be regarded as providing part of the 'machinery' whereby childrens' rights both constitutional and legislative are safeguarded."

42. The learned Supreme Court Judge goes on to deal with the context of adoption and of the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child. He also refers to the Guardianship of Infants Act, 1964 and to G -v- An Bord Uachtala . He goes on to say:-

"This, then, is the constitutional and modern legislative setting in which the sections in question of the Children Act, 1908 are to be construed."

43. The learned O'Flaherty J. states clearly in this judgment that he is speaking of 'cases concerning the care and custody of children' which are 'possibly unique in that the fundamental rights of persons are an issue in litigation in which they are not represented.' This is simply not the position in proceedings where a child is charged with a criminal offence. It is not the situation in the instant case, where the Accused has been granted legal and has at all times been represented by a very well known and experienced firm of criminal Solicitors who have now instructed both Junior and Senior Counsel.

44. The learned Judge goes on to deal with the context of adoption and of guardianship and the constitutional and legislative setting of 'the s ections in question' of the Children Act, 1908 and how they are to be construed. (My emphasis). The 'sections in question' in that case were Sections 20, 21 and 24, all of which are contained in part II of the Act and deal with 'Place of Safety' and 'Fit Person' orders. The learned Judge does not purport to deal with the Act in general, still less with criminal proceedings under part IV of the Act.

45. I have no difficulty in accepting that the District Court has, under the constitution, a general duty to consider and to promote the welfare of a child who appears before it on a criminal charge. This duty will probably be most urgent and most relevant when, if the Accused either pleads guilty or is found guilty of the charges laid against him, the Court comes to the point of pronouncing sentence. However, this constitutional duty must be balanced and harmonised, if possible, with the other constitutional rights which pertain to the Accused in a criminal trial.

46. It is noteworthy that Bunreacht na hEireann deals with 'Trial of Offences' in a special section (Articles 38 to 39) thus differentiating this form of proceedings from all others and setting out the particular rights that pertain to criminal proceedings. Article 38.1 provides that 'no person shall be tried on any criminal charge save in due course of law'. While Article 38.2 provides that minor offences may be tried by Courts of Summary Jurisdiction and Articles 38.3 and 38.4 deal with Special Courts and Military Tribunals, Article 38.5 provides that 'save in the case of the trial of offences under Section 2, Section 3 or Section 4 of this Article no person shall be tried on any criminal charge without a jury.'

47. As is well known the Courts have over the years delineated many of the unenumerated rights which are inherent in a trial 'in due course of law'. A far from exhaustive list would include the presumption of innocence, the privilege against self incrimination, the right to an expeditious trial, and the right to legal aid where is it needed. It is also well established that even if the Accused is convicted as charged he may not be subjected to preventative detention.

48. It seems to me that the real and primary issue before the District Court in this case, as in all criminal proceedings, is the guilt or innocence of the Accused. I accept that, in considering the general future care of the Accused by the Eastern Health Board, the Court is engaged in a bona fide effort to promote the welfare of Peter Thornton. However, there is a danger that in so doing the constitutional parameters relevant to a criminal trial may be ignored or unjustly postponed. In addition the pursuit of general assessments and wide ranging reports may well result in evidence being presented to the Court which would in the normal course of a trial be inadmissible.

49. It may be instructive to compare the situation in the instant case with the trial of an adult accused on similar charges. If a doubt arose of the accused's fitness to plead it would be open to the District Judge, and indeed incumbent upon him, to carry out an enquiry as to his fitness to plead and to obtain any evidence relevant to that enquiry. However, it would not be permissible for him to postpone the trial and to remand the Accused, and more particularly remand him in custody, for a considerable period in order to permit a general assessment of the Accused's pattern of life and future prospects. Insofar as any such enquiry would fall to be carried out by the Court, it could only properly be carried out following conviction and prior to sentence. Can it be said that in the case of 15 year old Accused the Court's general constitutional duty to promote the welfare of a child permits a procedure which would be constitutionally impermissible in the case of an adult? It seems to me that the answer must be no.

50. In the course of his judgment in the Attorney General -v- X [1992] 1IR1 Finlay C.J. stated:

"I accept that where there exists an interaction of constitutional rights, the first objective of the Courts in interpreting the constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied where such harmonisation may not be possible and in these instances I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights."

51. This dictum of the learned Finlay C.J. is, it seems to me, particularly relevant to the instant case. In the context of a criminal trial, insofar as there is a clash between the "general welfare" rights and the rights specifically delineated by the constitution as being relevant to the trial of offences, this second category of rights should in general have priority and should prevail. It is also desirable that there should be clear division between criminal proceedings which decide the guilt or innocence of an Accused and child care proceedings which make provision for the general welfare and future care and custody of a child. In so holding I am encouraged by the course followed by the learned Geoghegan J. in the case of Paul Stephens -v- Eastern Health Board (unreported 27th July 1994). In that case the learned Judge was dealing with the general aspects of the welfare of a minor and the duties of the Eastern Health Board under Section 3 of the Child Care Act, 1991. The minor was in the voluntary care of the Eastern Health Board. While the learned Judge directed that proper residential care be provided by the Eastern Health Board for the minor, he also stipulated (at page 17 of the judgment) that, where supervised residential care was provided along with a small number of other boys, "there would have to be a strict policy of immediate prosecution of boys committing a criminal offence in the form of malicious damage to the premises, but that in turn will mean that there must be in place suitable places of detention to which the District Court can send the offenders." The learned Judge clearly differentiates between the provision of residential care and the sentencing of offenders by the District Court to a "suitable place of detention" following, presumably, a criminal trial in the normal form.

52. In conclusion, therefore, I reiterate the replies to the District Judge's questions as set out in my preliminary ruling of 30th July, 1994, as follows:

Question (a): Whether the District Judge was entitled in law to make the Order of the 11th day of April, 1997?

Answer: Given the existence of the Fit Person Order of 11th January, 1990 in respect of the Accused, the Eastern Health Board is a "Guardian" as defined by Section 131 of the Children Act, 1908. The Board may therefore be required, under Section 98(2) of the said Act, to attend at the Court before which the Accused, Peter Thornton, is appearing.

53. The issue at present before the District Judge, which he raised of his own Motion, is whether the Accused is fit to plead or fit to elect whether to be tried in a summary manner or on indictment. In order to decide this issue the District Judge is entitled to seek information from the guardian Board through an assessment to be carried out by the Board. Bearing in mind, however, that the primary issue before the District Court is the guilt or innocence of the Accused and bearing in mind the constitutional right of the Accused to a reasonably expeditious trial in due course of law, the Order to be made by the District Judge should be limited to the carrying out of an assessment designed to ascertain whether the Accused has the capacity to follow the proceedings and to instruct his legal advisors. The District Judge is therefore not entitled to make, as he did, an Order extending to particular matters of diagnosis and to the provision of a care programme for the Accused while he continues in the care of the Eastern Health Board.

Question (b): Whether the Eastern Health Board was obliged in law to comply with the Order of the 11th day of April 1997.

Answer: It is clear from Section 98(3) of the Children Act, 1908 that the Court may properly make Orders against a guardian who has been required to attend before the Court. Such Orders are binding on the guardian. In the instant case, if so ordered by the District Judge, the Eastern Health Board is bound to provide an assessment as to whether, in the light of the information available to it, the Accused, Peter Thornton, has the capacity to follow the proceedings and to instruct his legal advisors.

54. Once the relevant assessment is received the District Judge should follow the procedures set out by Finlay C.J. in his judgment in O'c -v- Judges of the Dublin Metropolitan District [1994] 3IR 246 at 252, that is that the District Judge should complete his investigation as to whether he is satisfied that the Accused is fit notwithstanding his mental condition to understand and follow the proceedings in the District Court and to give real and valid instructions to his Solicitor and Counsel in regard to their defence of him in those proceedings. If the District Judge's conclusion is that he is so fit then the criminal proceedings should continue in the normal way. If his conclusion is that he is not so fit he must decline to enter upon the criminal proceedings and should make no Order of any description with regard to the further attendance of the Accused or with regard to his custody