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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. v The director of the Garda Juvenile Diversion Programme & ors [2019] IEHC 796 (22 November 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_796.html
Cite as: [2019] IEHC 796
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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 796
2018 No. 834 J.R
BETWEEN
S (IDENTITY PROTECTED)
APPLICANT
AND
THE DIRECTOR OF THE GARDA JUVENILE DIVERSION PROGRAMME
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
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
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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.
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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 Programme Director, Superintendent Colin Healy, has sworn an affidavit in these
proceedings. He describes his decision-making as follows.
“42. I, then Director of the Programme, duly considered the file, the Suitability Reports,
the correspondence from the Applicant’s Solicitor and the psychological Reports
provided and, having discussed the matter with the Gardai involved, decided that
the Applicant was unsuitable for inclusion in the Programme.
43. On 4 September 2018, having considered further submissions from the Applicant’s
Solicitor, I confirmed that the Applicant remained unsuitable for inclusion in the
Garda Youth Diversion Programme. In response to letters of 6 and 25 September
2018 from the Applicant’s Solicitor seeking reasons for the Applicant’s unsuitability,
on 1 October 2018 I replied that:
The Applicant’s referral does not fulfil the criteria for inclusion in the Garda
Diversion Programme. The matter has been referred to the Superintendent,
[Location Redacted] Garda Station for his attention.”
16. More generally, the Applicant is currently in third level education. He has not come to the
adverse attention of An Garda Síochána since the events the subject-matter of these
proceedings.
PART 4 OF THE CHILDREN ACT 2001
17. Part 4 of the Children Act 2001 has put in place a detailed legislative framework which is
intended to regulate the diversion of juvenile offenders from the criminal justice system.
The purpose and objective of the Diversion Programme are set out as follows at sections
18 and 19.
“18. Unless the interests of society otherwise require and subject to this Part, any child
who —
(a) has committed an offence, or
(b) has behaved anti-socially,
and who accepts responsibility for his or her criminal or anti-social behaviour shall
be considered for admission to a diversion programme (in this Part referred to as
the Programme) having the objective set out in section 19.
19.(1) The objective of the Programme is to divert any child who accepts responsibility
for his or her criminal or anti-social behaviour from committing further offences or
engaging in further anti-social behaviour.
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(2) The objective shall be achieved primarily by administering a caution to such a child
and, where appropriate, by placing him or her under the supervision of a juvenile
liaison officer and by convening a conference to be attended by the child, family
members and other concerned persons.”
18. The legislation prescribes certain qualifying criteria which must be fulfilled before a “child”
(as defined) is eligible to be considered for admission to the Diversion Programme (“the
Programme”) as follows. The offence or anti-social behaviour must have occurred at a
time when the offender was under the age of eighteen years. The offender must accept
responsibility for his or her criminal or anti-social behaviour, and must consent to be
cautioned, and, where appropriate, to be supervised by a juvenile liaison officer.
19. (For the sake of completeness, it should be noted that the Minister for Justice and
Equality is empowered under section 47 of the Children Act 2001 to make regulations
providing that prescribed criminal behaviour “of a serious nature” shall be excluded from
admission to the Programme (unless the Director of Public Prosecutions directs
otherwise). To date, the Minister has not made any such regulations. In principle,
therefore, the Programme is available—and has been applied in practice—even in the case
of serious offences such as murder. (See page 17 of the Section 44 Monitoring
Committee Report).
20. Once these qualifying criteria have been fulfilled, it is then the “function” of the
Programme Director to decide whether to admit a child to the Programme. (Section
24(1)). The principal statutory criteria which govern this decision are as follows.
(i) The Director must be satisfied that the admission of the child to the Programme
would be appropriate, in the best interests of the child and not inconsistent with the
interests of society and any victim. (Section 23(2)).
(ii). When the admission of a child to the Programme is being considered, any views
expressed by any victim in relation to the child’s criminal or anti-social behaviour
shall be given due consideration, but the consent of the victim shall not be
obligatory for such admission. (Section 23(4)).
21. The legal effect of admission to the Programme is to bar a prosecution for that offence.
See section 49 as follows.
“49.(1) A child shall not be prosecuted for the criminal behaviour, or any related
behaviour, in respect of which he or she has been admitted to the Programme.
(2) A child who has been admitted to the Programme in respect of anti-social behaviour
shall not be the subject of an application for an order under section 257D in relation
to any such behaviour which occurred prior to such admission.”
THE APPLICANT’S CASE
22. The Applicant has submitted that the Programme Director appears to be applying a
blanket policy to exclude any one over the age of eighteen years from the Programme.
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This approach is said to involve an incorrect interpretation of section 23 of the Children
Act 2001.
23. The Applicant has exhibited the 2017 Annual Report of the Committee Appointed to
Monitor the Effectiveness of the Diversion Programme (“the Section 44 Monitoring
Committee Report”). The statistics in this report appear to indicate that no one over the
age of eighteen years has been admitted to the Programme. See, in particular, pages 12
and 13 of the report.
24. Leading counsel on behalf of the Applicant, Mr James Dwyer, SC, submits that in the
absence of a statement of reasons, it is not possible to say to what extent the decision in
the present case was informed by this mistaken interpretation of the eligibility criteria.
25. As explained under the next heading below, however, matters moved on at the hearing in
that counsel for the Programme Director made submissions which confirmed the existence
of this error of law.
DISAGREEMENT AS TO INTERPRETATION OF CHILDREN ACT 2001
26. During the course of the hearing before this court, a significant disagreement emerged as
between the Programme Director and the Director of Public Prosecutions as to the correct
interpretation of Part 4 of the Children Act 2001. This disagreement 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.
27. It may assist the reader in understanding the nature of this disagreement to pause briefly
at this point, and to set out the provisions of section 23 of the Children Act 2001 which
are relevant to this issue, namely subsections (1) and (5).
“23.—(1) Subject to subsection (6), a child may be admitted to the Programme if he or
she—
(a) accepts responsibility for his or her criminal or anti-social behaviour, having
had a reasonable opportunity to consult with his or her parents or guardian
and obtained any legal advice sought by or on behalf of him or her,
(b) consents to be cautioned and, where appropriate, to be supervised by a
juvenile liaison officer, and
(c) is 10 years of age or over that age and under 18 years of age,
but paragraph (b) shall not apply where the Director is satisfied that the failure to
agree to being cautioned or supervised is attributable to undue pressure being
brought to bear on the child by any person and, in that event, the child shall be
deemed to have consented for the purposes of that paragraph.
[…]
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(5) For the purposes of subsection (1)(c), the age for admission to the Programme
shall be the age of the child on the date on which the criminal or anti-social
behaviour took place.”
28. The Programme Director maintains the position that once an offender has reached the
age of eighteen years, then he or she is not legally entitled to be admitted to the
Programme. (DAR, 14.30, 10 October 2019). Leading counsel on behalf of the
Programme Director, Mr Michael Durack, SC, justifies this approach by pointing out that
all of the provisions in respect of eligibility for the Programme relate to a “child”, and that
the definition of a “child” is someone who is under eighteen years of age. The Applicant
had reached the age of eighteen years shortly after he was first questioned in relation to
the offences.
29. Counsel further submits that the only point when the date of offence is mentioned is
under subsection 23(5). That subsection, it is said, deals with the position where undue
pressure is being brought to bear on the child by any person. It is only in those
circumstances that the date of commission of offence then becomes the operative date.
(It appears from this submission that the paragraph under subsections (a), (b) and (c) is
read as qualifying only subsection (c)).
30. Counsel on behalf of the Programme Director has informed the court that, in considering
his admission to the Programme, the Programme Director was affording the Applicant a
concession which does not appear to be provided for under a strict construction of the
section. This issue is not addressed on affidavit.
31. The Director of Public Prosecutions, through her counsel, Ms Sunniva McDonagh, SC,
submits that this interpretation of the legislation is incorrect. A similar submission is
made on behalf of the Applicant by his counsel, Mr James Dwyer, SC.
32. I am satisfied that the interpretation put forward by the Director of Public Prosecutions
and the Applicant is correct. The qualifying age 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. The Programme Director’s interpretation is incorrect, and
involves a misreading of the distinct provisions addressing the contingency of a child
being subject to undue pressure. The language of section 23 is clear, and there is an
express link between subsections (1)(c) and (5) (set out above). The age for admission
to the Programme is the age of the child on the date on which the criminal or anti-social
behaviour took place.
DETAILED DISCUSSION
OVERVIEW
33. The two principal issues which fall for determination in these proceedings are 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 Director of Public
Prosecutions. Secondly, in the event that the attenuated standard of review does apply,
Page 7 ⇓
it will then be necessary to consider whether intervention by the court by reference to this
standard is justified on the facts of the present case.
34. Before turning to address these two issues, it may assist in setting the context to explain
briefly the current legal requirements in relation to the duty to give reasons. These are
set out, primarily, in the judgment of the Supreme Court in Mallak v. Minister for Justice
and Equality [2012] IESC 59; [2012] 3 IR 297.
35. The judgment locates the source of a duty to give reasons as lying within the general
principles of natural and constitutional justice.
“[54] The general principles of natural and constitutional justice comprise a number of
individual aspects of the protection of due process. The obligation to give fair
notice and, possibly, to provide access to information or, in some cases, to have a
hearing are intimately interrelated and the obligation to give reasons is sometimes
merely one part of the process. The overarching principle is that persons affected
by administrative decisions should have access to justice, that they should have the
right to seek the protection of the courts in order to see that the rule of law has
been observed, that fair procedures have been applied and that their rights are not
unfairly infringed.”
36. The judgment, at a later point, summarises the present state of the law as follows.
“[68] In the present state of evolution of our law, it is not easy to conceive of a decision
maker being dispensed from giving an explanation either of the decision or of the
decision making process at some stage. The most obvious means of achieving
fairness is for reasons to accompany the decision. However, it is not a matter of
complying with a formal rule: the underlying objective is the attainment of fairness
in the process. If the process is fair, open and transparent and the affected person
has been enabled to respond to the concerns of the decision maker, there may be
situations where the reasons for the decision are obvious and that effective judicial
review is not precluded.
[69] Several converging legal sources strongly suggest an emerging commonly held
view that persons affected by administrative decisions have a right to know the
reasons on which they are based, in short to understand them.”
37. As appears from these passages, one of the principal determinants of whether a particular
individual is entitled to a statement of reasons in respect of an administrative decision is
whether that individual can be said to be a person affected by the decision. The
individual does not necessarily have to establish that the decision has interfered with a
“right” of theirs before they are entitled to reasons. It may be sufficient to trigger a duty
to give reasons that the individual has an interest in ensuring that the decision had been
reached in accordance with the relevant statutory provisions.
ATTENUATED STANDARD OF REVIEW
Page 8 ⇓
38. It is well established that a decision on the part of the Director of Public Prosecutions not
to prosecute is subject to an attenuated form of judicial review. Whereas the case law
stops short of conferring an immunity from judicial review, the threshold before a court
will intervene is very high. An applicant who seeks to challenge a decision of the Director
of Public Prosecutions must, in effect, establish that the impugned decision had been
reached mala fide or had been influenced by an improper motive or improper policy.
39. Leading counsel on behalf of the Programme Director, Mr Michael Durack, SC, submits
that the decision not to admit an individual to the Diversion Programme is analogous to a
decision by the Director of Public Prosecutions not to prosecute. Much reliance is placed
upon the judgment of the High Court (Hedigan J.) in Kelly v. Director of Public
Prosecutions [2009] IEHC 200, which, in turn, cited the judgment of the Supreme Court
40. In order to assess the correctness of this submission, it is necessary first to examine the
case law in relation to the Director of Public Prosecutions with a view to identifying the
rationale underlying the application of an attenuated standard of judicial review to the
DPP. Thereafter, it will be necessary to consider whether a similar rationale can be said
to apply to the Programme Director.
41. The starting point for this exercise is the judgment of the Supreme Court in State
(McCormack) v. Curran [1987] I.L.R.M. 225. The applicant in McCormack had been
accused of an offence which had been committed in Northern Ireland. The Criminal Law
(Jurisdiction) Act 1976 allowed for the possibility of an offence committed in Northern
Ireland being prosecuted within the State. For this to happen, the Director of Public
Prosecutions would have to issue a warrant for the arrest of the person charged in
Northern Ireland, with a view to their being prosecuted within the State for an extra-
territorial offence as defined. The Director had, however, declined to prosecute the
applicant.
42. One of the principal issues in the proceedings was whether the decision of the Director
not to prosecute the applicant was amenable to judicial review. Finlay C.J. rejected the
contention, made on behalf of the Director, that his decisions were not as a matter of
public policy ever reviewable by a court.
43. The judgment indicates, however, that the form of judicial review is attenuated.
“In regard to the DPP I reject also the submission that he has only got a discretion
as to whether to prosecute or not to prosecute in any particular case related
exclusively to the probative value of the evidence laid before him. Again, I am
satisfied that there are many other factors which may be appropriate and proper for
him to take into consideration. I do not consider that it would be wise or helpful to
seek to list them in any exclusive way. If, of course, it can be demonstrated that
he reaches a decision mala fide or influenced by an improper motive or improper
policy then his decision would be reviewable by a court. To that extent I reject the
Page 9 ⇓
contention again made on behalf of this respondent that his decisions were not as a
matter of public policy ever reviewable by a court.
In the instant case, however, I am satisfied that no prima facie case of mala fides
has been made out against either of the respondents with regard to this matter.
Secondly, I am satisfied that the facts appearing from the affidavit and documents
do not exclude the reasonable possibility of a proper and valid decision by the DPP
not to prosecute the appellant within this jurisdiction and that that being so he
cannot be called upon to explain his decision or to give the reasons for it nor the
sources of the information upon which it was based.”
44. As appears, the threshold for review is whether the decision can be demonstrated to have
been reached mala fides or had been influenced by an improper motive or policy.
45. The principles in State (McCormack) v. Curran were considered in detail by the Supreme
Court in H. v. Director of Public Prosecutions [1994] 2 I.R. 589. The applicant in that
case had sought an order of mandamus requiring the Director to prosecute an individual
in respect of alleged child sexual abuse. The Supreme Court refused to grant an order of
mandamus. O’Flaherty J. stated that if the Director were to be subjected to frequent
applications by discomfited persons for mandamus to compel him to bring prosecutions,
his office would be stretched beyond endurance in seeking to justify that which should not
require to be justified. The Supreme Court fully endorsed the approach in McCormack.
46. Before leaving H. v. Director of Public Prosecutions, it is instructive to consider the
arguments which had been advanced in justification of the attenuated standard of judicial
review. Counsel on behalf of the Director had submitted that there will often be good and
cogent reasons why the Director of Public Prosecutions should decide not to prosecute
and where it would be inappropriate that his reasons should be brought into the public
arena. Counsel had instanced examples such as where, though there might be a strong
suspicion of guilt on the part of an accused, the proof of guilt would simply not be
forthcoming. It would be very wrong for the Director to make a statement to the effect
that while he suspected someone was guilty of an offence he could not hope to sustain a
conviction. Counsel also cited the need to protect confidential informants.
47. The principles governing judicial review of a decision of the Director of Public Prosecutions
were again considered in the more recent judgment in Eviston v. Director of Public
Prosecutions [2002] 3 IR 260. This case involved a challenge to a decision to prosecute.
On the facts of that case, the Director, having originally stated that he would not
prosecute the applicant for an offence, made a subsequent decision to prosecute. The
Supreme Court, per Keane C.J., explained the effect of the earlier case law as follows.
“It is an important feature of the decisions in the State (McCormack) v. Curran
[1987] I.L.R.M. 225 and H. v. Director of Public Prosecutions [1994] 2 I.R. 589
that, in each case, the court was concerned with (a) a decision not to prosecute in a
particular case and (b) a challenge to the merits of that decision. The decisions,
Page 10 ⇓
accordingly, go no further than saying that the courts will not interfere with the
decision of the respondent not to prosecute where:-
(a) no prima facie case of mala fides has been made out against the respondent;
(b) there is no evidence from which it could be inferred that he has abdicated his
functions or been improperly motivated; and
(c) the facts of the case do not exclude the reasonable possibility of a proper and
valid decision of the respondent not to prosecute the person concerned.
They also make it clear that, in such circumstances, the respondent cannot be
called upon to explain his decision or to give the reasons for it or the sources of the
information upon which it is based.”
48. All parties at the hearing before me placed emphasis on the judgment of the Supreme
concerned with a different type of decision made by the Director of Public Prosecutions,
namely the statutory decision to certify that charges should be tried in the Special
Criminal Court. The Director must certify that the ordinary courts are, in her opinion,
inadequate to secure the effective administration of justice and the preservation of public
peace and order in relation to the trial of such person on such charge.
49. The Supreme Court, per O’Donnell J., held that there was a (limited) obligation on the
Director to give reasons for a decision of that type.
“[43] Where the Director is making a decision that is subject to only limited review by a
court and has the result that a trial which would otherwise take place before a jury
would be heard without a jury, then the Director is under a duty to give reasons for
that decision which extends to why he or she considers that the ordinary courts are
not suitable for a trial of this accused. As indicated in Mallak v. Minister for Justice
[2012] IESC 59, [2012] 3 IR 297, in an appropriate case, it may be sufficient to
state that no reason can be given, without impairing national security. A statement
of reasons that the Director believes the accused to be a member of, or associated
with, an organisation that is prepared to interfere with the administration of justice,
or even justifying the non-delivery of such reasons, will be sufficient, unless the
accused challenges the decision and provides sufficient information to the court, to
presumptively undermine the Director's reasons. As, for example occurred in The
State (Lynch) v. Cooney [1982] I.R. 337, it may be permissible, at that stage, for
the Director to amplify and explain any reasons, if thought desirable. It follows,
however, that the entitlement to obtain such reasons does not carry with it any
right contended for by the plaintiff to obtain the gist of information grounding such
a decision or to have a hearing or to make submissions before a decision is made.
The facts and argument in a case such as this lie in a fairly narrow compass. The
question, in any case, is whether the Director was entitled to consider that the
ordinary courts were inadequate to secure the administration of justice in a
particular case. Review of such a decision should be the exception and never the
routine, and only when an accused person can put forward a substantial case that
Page 11 ⇓
the decision making process has miscarried. The legal position outlined above
balances the desirability of reasoned decision making to strengthen the
administration of justice with the necessity to ensure that the process is tightly
controlled to avoid routine disclosure and review, which could undermine it.”
50. As appears from the above, the obligation to state reasons derives from the legal effect of
a decision to certify, namely that the accused will not be entitled to a jury trial, and from
the fact that the Director’s decision is not subject to appeal or review. This is
distinguished from other types of decision made by the Director, such as, for example,
the decision that an offence should be tried before the District Court.
51. At an earlier point, the judgment in Murphy v. Ireland endorses the correctness of the line
of case law running from State (McCormack) v. Curran.
“In the light of subsequent decisions of this court quashing decisions of the
Director, it is necessary to qualify that statement so as to provide that a decision of
the Director is reviewable if it can be demonstrated that it was reached mala fides
or influenced by improper motive or improper policy, or other exceptional
circumstances. However, as so qualified, the decision in The State (McCormack) v.
Curran [1987] I.L.R.M. 225 has remained the law. In H. v. Director of Public
Prosecutions [1994] 2 I.R. 589, the High Court held that, while the Director could
not, in general, be compelled to explain or give reasons, such an obligation could
arise once a decision was challenged. The High Court relied on the decision in
International Fishing Vessels Ltd. v. Minister for the Marine [1989] I.R. 149 which is
one of the foundation cases on the domestic law of the duty to give reasons.
However, the Supreme Court unanimously overturned this decision. O'Flaherty J.
upheld the submission that the Director was not obliged to give reasons. He
particularly distinguished International Fishing Vessels Ltd. v. Minister for the
Marine because of the limited scope of reviewability of the Director's decisions, at p.
603:-
‘Thus, Blayney J. [in International Fishing Vessels Ltd. v. Minister for the
Marine] starts from the premise that the decision of the Minister is open to
full judicial review. However, it is clear from the decision in The State
(McCormack) v Curran [1987] I.L.R.M. 225 that the discretion of the Director
of Public Prosecutions is reviewable only in certain circumstances as set out
by Finlay C.J. …
It would seem then that as the duty to give reasons stems from a need to
facilitate full judicial review, the limited intervention available in the context
of the decisions of the Director obviates the necessity to disclose reasons.’
Denham J., at p. 606, held that since the facts did not exclude the reasonable
possibility of a proper and valid decision then, citing The State (McCormack) v.
Curran [1987] I.L.R.M. 225 at p. 237, the Director ‘cannot be called upon to explain
his decision or to give reasons for it nor the sources of the information upon which
it is based’.
Page 12 ⇓
52. The most recent judgment of the Supreme Court on the approach to be taken to decisions
by the Director of Public Prosecutions appears to be Marques v Minister for Justice and
Equality [2019] IESC 16. Those proceedings involved a challenge to the exercise of the
Minister’s discretion in extradition matters. Extradition may be refused by the Minister for
an offence, which is also an offence under the law of the State, if the Director of Public
Prosecutions or the Attorney General has decided either not to institute proceedings or to
terminate proceedings against the person claimed in respect of the offence. On the facts,
the extradition of the applicant had been sought by the United States of America in
respect of his alleged involvement in offences related to the distribution of pornographic
images of children. The Director of Public Prosecution, knowing of the extradition
request, had declined to prosecute the applicant within this jurisdiction. The applicant
sought to challenge the failure of the Minister to exercise their discretion to decline to
extradite. It was argued that, in the absence of a statement of reasons by the Director as
to why she had decided not to prosecute the applicant, the Minister could not properly
exercise their residual discretion under section 15(2) of the Extradition Act 1965.
53. The Supreme Court ruled against the applicant on the basis that the final political decision
as to whether to accede to or to refuse an extradition resides with the Minister alone. The
Minister’s decision need not be informed by the Director’s decision not to prosecute the
offence locally. The Minister’s decision has nothing to do with whether the prosecuting
authorities thought that, for instance, the offence was more closely connected to the
requesting country, or whether the evidence was likely to be excluded under Ireland’s
criminal justice system.
54. For present purposes, the relevant aspect of the judgment is its endorsement of the
general principle that the Director of Public Prosecutions is not obliged to give reasons for
a decision as to whether to prosecute or not. The Supreme Court in Marques cited with
approval the following passage from Monaghan v. Director of Public Prosecutions
[2007] IEHC 92, [9].
“In fulfilling his function, the Director of Public Prosecution is not to be obliged to
give reasons for his decision as to whether to prosecute or not unless it can be
demonstrated that such a decision was made in bad faith or under the influence of
an improper motive or policy; The State (McCormack) v. Curran [1987] I.L.R.M.
225. Partly, the reasoning behind the series of decisions which later upheld that
principle may be based on public policy in the sense that for reasons to be given as
to why a prosecution should not be initiated, for instance due to lack of evidence, or
the loss of evidence, such a declaration might undermine the presumption of
innocence in favour of the accused. In addition, an extra administrative burden
might be unjustifiably thrust upon the office of The Director of Public Prosecutions
in explaining, and then defending, every decision made pursuant to the powers
vested in the office by the Prosecution of Offences Act. Once there is a reasonable
possibility that a valid decision has been made by the Director not to prosecute, or
to prosecute, a decision by the Director is not reviewable by the High Court; H v.
D.P.P. [1994] 2 I.L.R.M. 285. The Director is not exempt from the general
Page 13 ⇓
constitutional requirements of fairness and fair procedures. The proof of the
absence of such principles in any decision made by the Director of Public
Prosecutions cannot be gathered through a speculative application for discovery;
Dunphy (a minor) v. D.P.P. [2005] IESC 75. There must be, at the least,
evidence suggestive of an impropriety before the court would allow a proceeding for
discovery to be initiated against the Director of Public Prosecutions.”
RATIONALE FOR ATTENUATED REVIEW OF DPP
55. As appears from the foregoing survey of the case law, it remains the position that
decisions of the Director of Public Prosecutions are still subject to an attenuated form of
judicial review. One consequence of this is that the obligation upon the DPP to state
reasons is correspondingly limited. The Director has not, however, escaped entirely the
implications of the judgment in Mallak.
56. The attenuated form of judicial review can be justified on a number of grounds. First, the
Director exercises a very broad discretion in making decisions on whether or not to
prosecute in any particular case. The legislation which establishes the office of Director of
Public Prosecutions, namely the Prosecution of Offences Act 1974, is not prescriptive as to
the criteria to which the Director must have regard in making decisions. The exercise of
such a broad discretion does not readily lend itself to control by the courts. A decision on
whether or not to prosecute may have been informed by a number of factors, such as the
strength of the evidence, the public interest in the prosecution, the seriousness of the
alleged offence or the need to prioritise finite financial resources. Such matters fall
towards the policy end of the spectrum of decision-making, and the courts would normally
defer to the designated decision-maker.
57. Secondly, were the High Court, in the exercise of its supervisory jurisdiction, to be too
willing to engage with the “merits” of a positive decision to prosecute an individual, it
might inadvertently trespass on the role of the criminal courts. If, for example, a decision
to prosecute was being challenged on the basis that there was insufficient evidence to
justify the prosecution, the High Court might be invited to rule on matters relating to,
say, the admissibility or strength of evidence. It is arguable that such matters are best
left to the court of trial.
58. Thirdly, the imposition of an obligation on the Director to justify her decisions would
impose an excessive or disproportionate administrative burden on her office.
59. The sensitive nature of the decision-making also militates against the imposition of a duty
to give reasons. This is especially so in the case of a decision not to prosecute. The
disclosure of reasons for such a decision to a third party, i.e. a person other than the
alleged offender, might adversely affect the first person’s right to a good name. To take
one obvious example: if a decision not to prosecute had been informed by concerns as to
the quality of the evidence available, this might lead to an inference that the individual
involved was, in truth, guilty and that a prosecution had not been brought merely for
want of formal evidence.
Page 14 ⇓
60. Equally, a decision not to prosecute might involve the implication that the victim would
not be a credible witness. The publication or disclosure of such observations on the part
of the Director would, self-evidently, be harmful to the reputation and good name of
those involved.
61. Similar concerns have been articulated, more eloquently, by the High Court (Hogan J.) in
Flynn v. Medical Council [2012] IEHC 477; [2012] 3 I.R. 236, [27] and [28].
“There is no doubt but that the issue as to whether a prosecutor or other statutory
personage is required to give reasons for their failure to take either a criminal
prosecution or regulatory action is a vexed and troubling one. This is especially
true in relation to criminal prosecutions where it is generally thought indecorous for
a prosecutor to have to give reasons - certainly detailed reasons - for failing to
prosecute a particular case. If, for example, the Director of Public Prosecutions was
required to give detailed reasons for such a decision, it might be damning of a
particular accused while providing cogent reasons for not acting. The Director
might, for example, think that the evidence was strongly suggestive of guilt, yet
decline to prosecute because of concerns regarding the reliability of a particular
witness or the admissibility of key evidence.
Few accused persons placed in that situation would view this state of affairs with
equanimity and, hence, for these practical and pragmatic reasons the courts have
been reluctant to impose such a requirement on the prosecuting authorities. This is
why the Supreme Court concluded in The State (McCormack) v. Curran
[1987] I.L.R.M. 225, at p. 237, that it would only be appropriate for a court to intervene by
way of judicial review of a decision not to prosecute where such decision was taken
‘mala fide or influenced by an improper motive or improper policy’. This approach
has been consistently followed ever since in the context of criminal prosecutions:
see, e.g., H. v. Director of Public Prosecutions [1994] 2 I.R. 589 and, in the context
62. I respectfully endorse this analysis.
KELLY V. DIRECTOR OF PUBLIC PROSECUTIONS
63. The principal question for determination in these proceedings is whether the same
rationale extends to a decision on the part of the Programme Director not to admit a
juvenile offender to the Diversion Programme. It is submitted on behalf of the two
respondents that the question of the applicability of the attenuated standard of review to
the Programme Director has been concluded by the judgment of the High Court (Hedigan
court is bound to follow that judgment.
64. The judgment in Kelly was delivered in respect of two related judicial review proceedings.
The two respective applicants had been charged with offences under the Non-Fatal
Offences against the Person Act 1997 and the Criminal Justice (Public Order) Act 1994.
The charges related to an incident in which two Polish nationals had been attacked by a
Page 15 ⇓
number of youths. The victims had received stab wounds, and one required emergency
surgery in order to prevent the loss of his life.
65. The two applicants had been interviewed subsequently by a Garda Juvenile Liaison Officer
(“the JLO”) with a view to her preparing a report as to their suitability for admission to
the Diversion Programme. The JLO had sworn an affidavit in each of the two judicial
review proceedings explaining the reasons why she had recommended that the applicants
were not suitable for inclusion in the Programme. The content of these affidavits is
summarised at paragraph [12] of the judgment as follows.
“While the applicant’s [sic] were being considered for admission into the
Programme, the Garda investigation into the alleged offences of the 10th of
February 2007 was continuing. On the 2nd of April 2007, a medical report on the
injured parties was sought on behalf of the Director of the Programme. The
investigation ultimately concluded on the 11th of April 2007 and on the same day,
Garda Gralton submitted her reports to the Director of the Programme. In both
cases, Garda Gralton concluded that the offences alleged were of a very serious
nature, involving two separate attacks on foreign nationals who received very
significant injuries. She was also of the opinion that there had been a racial
undertone to the attacks. In the case of the first named applicant, Garda Gralton
noted additionally that he had declined to make a full admission of the offences. In
the case of the second named applicant, Garda Gralton made reference to the fact
that he had previously been directed to the Programme on a number of occasions.
On the basis of all of these factors, Garda Gralton concluded that neither applicant
was suitable for admission to the Programme.”
66. The judgment goes on to explain at paragraph [13] that the (then) Programme Director’s
decision not to admit the applicants to the Programme had been predicated in each case
on the JLO’s report; the juvenile referral form prepared in respect of the applicant; and
the investigation file pertaining to the incident.
67. The matter is put as follows at paragraph [32] of the judgment.
In the present case, the Director accepted the view of Garda Gralton that the
offences alleged were of such a serious nature, and occurred in such aggravating
circumstances, as to render the perpetrators unsuitable for admission to the
Programme. Furthermore, I am satisfied that the Director was entitled to take
account of the fact that the second named applicant had benefited from the scheme
on several previous occasions. This is also clear from the Dunphy decision. In that
case, Hardiman J. stated the following at page 598:-
‘It is… true that the fact that a juvenile has had the benefit of the scheme on
one occasion is a proper matter to be taken into account when considering
whether she should have the benefit of the scheme again… There is clearly
scope for the view that the applicant should not again be given the benefit of
the diversion scheme, either on the basis that she had not profited from her
Page 16 ⇓
previous experience of the scheme, or on the basis that the vindication of the
law in the fraught matter of unlawful drugs required that a person who had
not taken a previous opportunity offered by the Diversion Scheme should not
be given the benefit of it on another occasion, or indeed for a combination of
these views.’[
I am therefore unable to accept that there was any violation of the provisions of the
2001 Act in the present case which would impel the Court to grant the relief
sought.”
68. The grounds of challenge advanced in Kelly were more wide-ranging than in the present
case. In particular, the applicants had argued that they should have been afforded the
right to make representations before the report of the JLO had been finalised and
submitted to the Programme Director. It had been further argued that the applicants
ought to have been permitted to make representations before the Programme Director
made his ultimate decision, and that the Programme Director should have provided
reasons for his determination on the matter.
69. As appears from the passages of the judgment in Kelly cited above, the rationale for
refusing to admit the two applicants into the Diversion Programme had been disclosed as
part of the affidavits filed in the judicial review proceedings by An Garda Síochána. In
particular, the applicants were made aware that the decision was informed by
considerations such as the serious nature and aggravating circumstances of the offences;
the racial undertone of the offences; the failure of the first applicant to make a full
admission to the offences; and the fact that the second applicant had benefited from the
Programme on several previous occasions.
70. The High Court appears to have accepted that these considerations were all matters
which the Programme Director could lawfully take into account in the exercise of his
discretion under section 23(2) of the Children Act 2001.
71. Hedigan J., at paragraph [31] of the judgment, drew an analogy between the discretion
exercised by the Programme Director under section 23(2) of the Children Act 2001, and
that exercised by the Director of Public Prosecutions.
“31. It is quite clear that under section 23(2) of the 2001 Act, the Director is required to
assess any candidacy for the Programme in a manner which achieves a balance
between the best interests of the particular candidate and those of any victims as
well as society as a whole. This accords with the generally wide discretion which is
afforded to prosecuting authorities when deciding whether to bring criminal
proceedings against a particular individual. In Eviston v. Director of Public
Prosecutions [2002] 3 IR 260, Keane J. examined the authorities on this point and
concluded as follows at page 294:-
‘It is an important feature of the decisions… that, in each case, the court was
concerned with (a) a decision not to prosecute in a particular case and (b) a
Page 17 ⇓
challenge to the merits of that decision. The decisions, accordingly, go no
further than saying that the courts will not interfere with the decision of the
respondent not to prosecute where:-"
(a) no prima facie case of mala fides has been made out against the
respondent;
(b) there is no evidence from which it could be inferred that he has
abdicated his functions or been improperly motivated; and
(c) the facts of the case do not exclude the reasonable possibility of a
proper and valid decision of the respondent not to prosecute the
person concerned.’
The application of these principles to decisions made under the Programme, albeit
in its previous non-statutory incarnation, was affirmed by Hardiman J. in Dunphy (A
Minor) v. Director of Public Prosecutions [2005] 3 IR 585. I am satisfied that they
should also apply in relation to Part IV of the 2001 Act.”
72. The judgment goes on to state at paragraph [34] that it is well established that executive
decisions made at the outset of a prosecution for a criminal offence are not reviewable
save in the most exceptional circumstances. At paragraphs [37] and [38], it is stated
that any obligation on the part of the Programme Director to provide a reasoned decision
is “heavily restricted” by the nature of the decision being made by the Director. The court
concluded by rejecting the argument that the Director had any obligation to inform the
applicants of his reasons for excluding them from the Programme.
73. Having carefully considered the judgment in Kelly, it does not appear to me to be
conclusive of the issues which fall for determination in the present case. One of the
central issues to be determined is how the principles in the landmark judgment in Mallak
apply to a decision not to admit an offender to the Diversion Programme. The judgment
in Kelly had been delivered several years prior to Mallak, and, thus, by definition, could
not have addressed this question.
74. Moreover, there does not appear to be any reference in the summary of the submissions
of the parties, as set out in the Kelly judgment, to the legal implications flowing from the
fact that the previous non-statutory scheme operated by the Director of Public
Prosecutions has now been put on a statutory basis. Nor is there any reference to the
fact that the decision on whether or not to admit an offender to the Diversion Programme
is now a function of An Garda Síochána, and not of the Director of Public Prosecutions.
These issues do not appear to have been argued before the High Court in Kelly. A point
not argued is a point not decided.
75. Finally, as the passages from Kelly set out above indicate, the reasons for non-admission
of the applicants to the Programme had been disclosed in the affidavits filed in the judicial
review proceedings. In a sense, therefore, the argument as to whether the Programme
Director was obliged to give reasons had become academic. The applicants were fully
aware of why they had been denied admission to the Programme.
Page 18 ⇓
76. For the sake of completeness, it should be noted that the same type of grounds which
justify distinguishing Kelly apply with even greater force to the judgment of the Supreme
77. The offences at issue in that case had occurred prior to the commencement of Part 4 of
the Children Act 2001. The applicants were relying instead on the non-statutory scheme
which was administered primarily by the Director of Public Prosecutions. The points of
distinction made above as to the differences between the statutory and the non-statutory
schemes were simply not before the Supreme Court.
78. The Supreme Court, per Hardiman J., applied the attenuated standard of review to the
decision to deny one of the two offenders the benefit of the non-statutory scheme. The
Supreme Court held that the alleged disparity in treatment was capable of justification on
the ground that the excluded offender had previously had the benefit of a caution in
respect of an earlier offence. See paragraphs [36] and [37] of the judgment as follows.
“That is undoubtedly true. It is equally true that the fact that a juvenile has had
the benefit of the scheme on one occasion is a proper matter to be taken into
account when considering whether she should have the benefit of the scheme
again. There is no suggestion that the other girl had any previous involvement in
the scheme, or any previous convictions. There is clearly scope for the view that
the applicant should not again be given the benefit of the diversion scheme, either
on the basis that she had not profited from her previous experience of the scheme,
or on the basis that the vindication of the law in the fraught matter of unlawful
drugs required that a person who had not taken a previous opportunity offered by
the diversion scheme should not be given the benefit of it on another occasion, or
indeed for a combination of these views. Having regard to the fact that it is for the
applicant to demonstrate that the facts "exclude the reasonable possibility of a
proper and valid decision by the [respondent]" it is unnecessary to make further
findings. There is clearly scope for the view that the decision to divert the other girl
involved into the juvenile liaison scheme, and the respondent's decision to
prosecute the applicant, are each quite consistent with total propriety in the
respective decision-making processes.
This being so, I believe that the applicant has made no showing at all towards
discharging the burden that indisputably lies on her, even in a suggestive or prima
facie fashion.”
79. The applicant in Dunphy was thus aware of the reasons for her exclusion from the non-
statutory scheme.
FINDINGS OF THE COURT:
PROGRAMME DIRECTOR IS SUBJECT TO JUDICIAL REVIEW
80. The principal features of the Diversion Programme have been set out, in summary form,
at paragraphs 17 et seq. above. The legal status and statutory functions of the
Programme Director are so very different from those of the Director of Public Prosecutions
Page 19 ⇓
as to make it inappropriate to treat the former as being subject to the same attenuated
form of judicial review as the latter. This conclusion is premised on the following
considerations.
81. First, the decision as to whether or not to admit an offender to the Programme resides
exclusively with An Garda Síochána. The Garda Commissioner is required to assign an
officer, not below the rank of superintendent, with the function of Director of the
Diversion Programme. It is the “function” of the Programme Director to decide whether
to admit a child to the Programme. (Section 24(1)). The Director of Public Prosecutions
is bound by the decision of the Programme Director. This is because the making of a
decision by the Programme Director to admit an offender to the Programme bars any
prosecution for the criminal behaviour, or any related behaviour, in respect of which he or
she has been admitted. (Section 49).
82. In the absence of any regulations having been made under section 47, the Director of
Public Prosecutions no longer has any role in relation to the threshold decision as to
whether to admit an offender to the Programme. This is to be contrasted with the
position in respect of the previous non-statutory scheme as described in the judgment in
Dunphy (A Minor) v. Director of Public Prosecutions (at paragraphs [32] to [34] of the
judgment).
83. Put shortly, admission to the Programme does not come within the umbrella of the
Director of Public Prosecution’s decision-making. If an attenuated form of review is to
apply, then it must be justified by the nature of the Programme Director’s function.
84. This leads on to the second point. The Oireachtas has made a policy choice to divert
certain juvenile offenders from the criminal justice system. The Programme Director is
the person designated to give effect to this legislative intent. The decision as to whether
or not to admit any individual offender to the Programme must be made by reference to
the statutory criteria prescribed. Whereas Part 4 of the Children Act 2001 does
undoubtedly confer a margin of discretion on the Programme Director, this discretion is
constrained and he must observe the statutory criteria. The Programme Director is in a
very different position than the Director of Public Prosecutions. The latter is entirely
independent in the exercise of her functions, and the Prosecution of Offences Act 1974 is
not prescriptive as to the criteria to which the Director must have regard in reaching
prosecutorial decisions.
85. It would risk undermining the legislative intent underlying Part 4 of the Children Act 2001
were the Programme Director to be accorded the benefit of the same attenuated form of
judicial review as the DPP. To do so would mean that there was no effective procedure in
place by which non-observance of the statutory criteria could be corrected.
86. Thirdly, there are certain conditions precedent to the making of a decision to admit a
juvenile offender to the Programme. It is only where these have been fulfilled that the
statutory discretion comes into play. Relevantly, the offender must have been under
eighteen years of age at the time the offence occurred. If the Programme Director were
Page 20 ⇓
to have misinterpreted or misunderstood the statutory qualifying criteria, then this would
represent an error of law on his part. This error would be amenable to correction by way
of judicial review.
87. Fourthly, a further consequence of the fact that the range of considerations to be taken
into account by the Programme Director is narrower is that the imposition of a
requirement to state reasons would not present the same sensitivities as in the case of
the Director of Public Prosecutions. By definition, a decision on admission to the
Programme only properly arises for consideration where the offender has accepted
responsibility for his or her criminal or anti-social behaviour. Thus, the type of difficult
issues in relation to evidence and proof which often arise for consideration by the Director
of Public Prosecutions will not have to be considered by the Programme Director. It
should also be borne in mind that there are express statutory provisions which render
inadmissible evidence obtained in the course of the consideration of admission to the
Programme. (Section 48 of the Children Act 2001).
88. Moreover, any duty to state reasons can properly be confined to the giving of reasons to a
juvenile offender who seeks admission to the Programme. There would be no obligation
to provide reasons to third parties. Accordingly, the type of concerns identified at
paragraph 59 above will not arise.
SUMMARY
89. Having regard to all of these considerations and, in particular, to the fact that the decision
to admit an offender to the Programme must be made in accordance with prescribed
statutory criteria and that the Director of Public Prosecutions has no function in this
regard, the decisions of the Programme Director do not attract the same standard of
attenuated judicial review as is applicable to the Director of Public Prosecutions. This
does not mean, of course, that it is “open season” in respect of decisions made under Part
4 of the Children Act 2001. The Programme Director, as with any other public authority
charged with the exercise of a statutory discretion, is entitled to curial deference. A court
will not intervene to set aside a decision on the merits unless an applicant for judicial
review can establish that the decision is “unreasonable” or “irrational” in the sense that
those terms are used in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, and Meadows v.
Minister for Justice and Equality [2010] IESC 3; [2010] 2 IR 701. An applicant for
judicial review will have to hurdle this very high threshold before he or she could succeed
in setting aside the decision on the merits.
90. It follows as a consequence of this finding that his decisions are amenable to judicial
review that the Programme Director is, in principle, required to provide reasons, if
requested, to a juvenile offender who has been refused access to the Programme.
Whereas a juvenile offender does not have a “right” to be admitted to the Programme,
they do have an obvious interest in ensuring that the decision has been reached in
accordance with the relevant statutory provisions. See, by analogy, Mallak v. Minister for
Justice and Equality [2012] IESC 59; [2012] 3 IR 297.
Page 21 ⇓
91. The reasons can be stated in short form, and there is no obligation on the Programme
Director to provide a discursive explanation. In the unlikely event that the statement of
reasons would involve the disclosure of sensitive material, then the Programme Director
can decline to provide reasons on that basis.
92. An example of the type of reasons which would pass muster is provided by the facts of
Kelly v. Director of Public Prosecutions (discussed earlier). On the facts of that case, the
decision not to admit the two applicants to the Programme had been informed by the
serious nature and aggravating circumstances of the offences; the racial undertone of the
offences; the failure of the first applicant to make a full admission to the offences; and
the fact that the second applicant had benefited from the Programme on several previous
occasions. A short statement along these lines would fully discharge the duty to give
reasons. Moreover, it would not involve the disclosure of any sensitive information.
93. Returning to the facts of the present case, the Programme Director has declined to
provide any reasons whatsoever for his decision not to admit the Applicant to the
Programme. The Applicant is entitled to reasons, or, at the very least, to an explanation
as to the basis on which the Programme Director purports to withhold reasons. The
Applicant is, therefore, entitled to an order setting aside the decision and directing that
the matter be reconsidered in light of the findings of the court. I discuss the precise form
of order towards the end of this judgment.
INTERVENTION JUSTIFIED EVEN ON ATTENUATED STANDARD
94. For the reasons set out under the previous heading, I have concluded that decisions made
by the Programme Director pursuant to Part 4 of the Children Act 2001 do not attract the
attenuated standard of review applicable to decisions of the Director of Public
Prosecutions.
95. Lest I be incorrect in this finding, I propose to consider, separately, the question of
whether the circumstances of the present case would justify intervention even on the
attenuated standard of judicial review.
96. The case law discussed earlier emphasises that even the decisions of the Director of
Public Prosecutions are not entirely immune from judicial review. Rather, an applicant
who seeks to challenge such a decision must demonstrate that there is, for example,
evidence from which it can be inferred that the DPP’s decision has been influenced by an
improper motive or policy.
97. On the facts of the present case, the material before the court establishes that there is a
prima facie case for saying that the Programme Director’s decision may have been
informed by a mistaken interpretation of the eligibility criteria governing admission to the
Programme. More specifically, as the disagreement between the two State respondents
illustrates, the Programme Director appears to have been labouring under a
misapprehension that an offender who has reached the age of eighteen years is ineligible
for admission to the Programme. Certainly, the language used in the correspondence, i.e.
the Applicant’s “referral does not fulfil the criteria for inclusion in the Garda Diversion
Page 22 ⇓
Programme”, suggests that the decision may well have been grounded on the fact that
the Applicant had turned eighteen.
98. It has been suggested in oral submissions before this court that the possibility of
admission to the Programme may have been extended to the Applicant on a
concessionary basis. There is, however, no affidavit evidence to this effect before the
court.
99. If the impugned decision not to admit the Applicant to the Programme was, indeed,
reached on this mistaken interpretation of the legislation, then this would represent a
good ground for setting aside the decision even on the attenuated standard of judicial
review. A decision-maker must ask himself the correct question, and the
misinterpretation of a condition precedent to the exercise of a statutory discretion would
render the decision invalid. See, by analogy, White v. Dublin City Council [2004] IESC
35; [2004] 1 IR 545.
100. The respective counsel acting on behalf of the Programme Director and the Director of
Public Prosecutions both, very properly, conceded that it was not possible to tell from the
decision (and subsequent correspondence from the Programme Director) whether he was,
indeed, guilty of this misinterpretation. The decision-making is inscrutable. The refusal
of the Programme Director to provide reasons in the particular circumstances of this case
frustrates the High Court’s supervisory jurisdiction by way of judicial review. To permit
the Programme Director to maintain this Sphinx-like approach would run the risk of
allowing a serious error of law on the part of a statutory decision-maker to go unchecked.
This would be contrary to the rule of law.
REPORTING RESTRICTIONS
101. In order to be eligible for consideration for admission to the Programme, it is necessary
for an offender to accept responsibility for his or her criminal or anti-social behaviour. In
the event that the offender is not admitted to the Programme, this acceptance or
admission cannot be relied upon in evidence at a subsequent criminal trial. (Section 48).
102. In the ordinary course of events, the making of such admissions would only be known to
the offender, his or her legal team and the relevant gardaí. The admissions would not
have been widely circulated.
103. The Applicant in the present case finds himself in a very different position. The fact of his
having made a series of admissions of criminal wrongdoing has been disclosed as part of
these judicial review proceedings. It would undermine the statutory prohibition on the
use of such admissions at a subsequent criminal trial if the fact that the Applicant had
made these admissions were to be published as part of the reporting of these judicial
review proceedings. If, for example, the Applicant’s name and the details of the case
(including his admissions) were to be published, then there is a real risk that this might
come to the attention of members of a jury in any subsequent criminal proceedings. This
would then give rise to a real risk of an unfair trial.
Page 23 ⇓
104. To mitigate this risk, it seems sensible that restrictions should be imposed on the
reporting of the judicial review proceedings. For this reason, I made an order at the
outset of the proceedings prohibiting the publication of any material which is capable of
allowing the Applicant to be identified. This order continues in force.
105. For similar reasons, the precise details of the alleged offences have been omitted from
this judgment.
106. All parties were agreed, in principle, that reporting restrictions should be imposed on
these proceedings. The parties are not, however, agreed as to the jurisdictional basis for
such reporting restrictions. The Applicant seeks to rely on the provisions of section 45 of
the Courts (Supplemental Provisions) Act 1961, saying that these judicial review
proceedings fall within the definition of a “minor matter”. The judgment of the High Court
support of this interpretation.
107. The State respondents, conversely, rely on the court’s inherent jurisdiction to protect the
integrity of the trial of the criminal charges currently pending against the Applicant. The
judgments in Irish Times Ltd. v. Ireland [1993] 1 I.R. 359; Independent Newspapers
3 [2008] I.R. 328 are cited in support of this proposition.
and [81], I do not think that the provisions of section 45 of the Courts (Supplemental
Provisions) Act 1961 can be relied upon to impose reporting restrictions on the criminal
trial of an adult in respect of offences alleged to have been committed at a time when the
offender was a “child” (as defined).
“With respect, I am not satisfied that Section 45(1) of the Courts (Supplemental
Provisions) Act 1961 can be interpreted in this way. It is well established that
statutory exceptions to the constitutional imperative that justice should be
administered in public must be strictly construed, both as to the subject matter and
the manner in which the procedures depart from the standard of a full hearing in
It seems to me that in circumstances where the Oireachtas has made express
provision under [Section 93] of the Children Act 2001 for restricting the reporting of
criminal proceedings involving offences alleged to have been committed by
children, but has omitted to extend that protection to cases where the hearing
takes place after the child has become an adult, weight should be given to this
legislative preference. It is not open to this court to sidestep this legislative
preference by calling in aid the general provisions of Section 45(1) of the Courts
(Supplemental Provisions) Act 1961. The specific circumstances in which criminal
proceedings in respect of offences alleged to have been committed by minors can
be held otherwise than in public is regulated under the Children Act 2001. There is
an obvious tension between the principle that justice be administered in public, and
a desire to shield child defendants from publicity lest it frustrate their rehabilitation
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or undermine their future prospects in life. The compromise chosen by the
Oireachtas is to provide anonymity in cases where the defendant is still a ‘child’ as
defined at the time of the criminal proceedings. If the child has reached the age of
majority, then they are confined to the benefit of Section 258 of the Children Act
2001. Section 258 provides, in effect, that criminal convictions for offences
committed as a child shall be expunged after a period of three years. This is subject
to certain exceptions, e.g. it does not apply to an offence which is required to be
tried by the Central Criminal Court, or where the defendant has been dealt with
regarding an offence in that three-year period.
Whereas there might well be different opinions as to whether this compromise is
the most appropriate one, that is not a matter for this court. The interpretation of
[Section 93] of the Children Act 2001 is unequivocal, and the benefit of the
reporting restrictions is not available in the case of an adult defendant.”
109. The proper jurisdictional basis for the reporting restrictions is, instead, to be found under
the court’s inherent jurisdiction to protect the integrity of a criminal trial.
110. The precise form of the reporting restrictions imposed is set out below under the heading
“Form of Order”.
CONCLUSIONS
111. A decision by the Programme Director, made pursuant to Part 4 of the Children Act 2001,
not to admit a juvenile offender to the Diversion Programme is amenable to judicial
review. Such a decision does not attract the attenuated standard of review which is
applicable to decisions of the Director of Public Prosecutions.
112. The Programme Director is, therefore, required to provide reasons to a juvenile offender
who has been denied access to the Programme, if requested. This follows from the
113. This does not mean, of course, that it is “open season” in respect of decisions made under
Part 4 of the Children Act 2001. The Programme Director, as with any other public
authority charged with the exercise of a statutory discretion, is entitled to curial
deference. A court will not intervene to set aside a decision on the merits unless an
applicant for judicial review can establish that the decision is “unreasonable” or
“irrational” in the sense that those terms are used in O’Keeffe v. An Bord Pleanála
701. An applicant for judicial review will have to hurdle this very high threshold before he
or she could succeed in setting aside the decision on the merits.
114. Lest I be incorrect in the findings above, I am satisfied that even if the attenuated
standard of judicial review were applicable, the peculiar circumstances of the present case
would have triggered an obligation to state reasons. The material before the court
establishes that there is a prima facie case for saying that the Programme Director’s
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decision had been informed by a mistaken interpretation of the eligibility criteria
governing admission to the Programme. More specifically, the Programme Director
appears to have been labouring under a misapprehension that an offender who has
reached the age of eighteen years is ineligible for admission to the Programme. On its
correct interpretation, section 23 of the Children Act 2001 provides that the age 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.
115. The refusal of the Programme Director to provide reasons in the peculiar circumstances of
this case frustrates the High Court’s supervisory jurisdiction by way of judicial review. To
permit the Programme Director to maintain a Sphinx-like approach would run the risk of
allowing a serious error of law on the part of a statutory decision-maker to go unchecked.
This would be contrary to the rule of law.
FORM OF ORDER
116. I propose to make the following orders. 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. These orders reflect the
relief sought at (d) (1) and (2) of the Statement of Grounds.
117. 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 this court as set out in
this judgment. It would not be appropriate in the circumstances of the present case
simply to direct that the decision-maker furnish reasons retrospectively. This is because
the (former) Programme Director appears to have been operating on a fundamental
misinterpretation of Part 4 of the Children Act 2001. This undermines confidence in the
earlier decision-making process. It is preferable, therefore, that the question of the
Applicant’s admission to the Programme be considered afresh, i.e. as opposed to reasons
being provided ex post facto for the original decisions of July and September 2018. The
matter is to be reconsidered by an officer other than Superintendent Colin Healy.
118. The order restraining the Director of Public Prosecutions from pursuing the prosecution of
the Applicant is to remain in force. The Director of Public Prosecutions has liberty to
apply, on seven days’ notice to the Applicant, to have this order vacated in the event that
the reconsideration of the matter does not result in a decision to admit the Applicant to
the Diversion Programme. Any such application should be made to me in the first
instance.
119. The reporting restrictions are to continue. In this regard, I will make an order that no
material is to be published which might lead to the identity of the Applicant being
disclosed. In particular, and without prejudice to the foregoing, publication of the
Applicant’s name; his date of birth; his address; and details of the school and third level
institution which he has attended is prohibited. Similar reporting restrictions apply to the
victim of the offences. No details of the alleged offences, other than the summary set out
in this judgment, are to be published.
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120. I will hear counsel in relation to costs and as to the form of stay to be granted in the
event of an appeal.
Result: Application for judicial review allowed, and order for remittal made.