Supreme Court of Ireland Decisions

 
THE SUPREME COURT

108/01

McGuinness J.

Hardiman J.

Fennelly J.

BETWEEN LEIGH O'CONNELL SUING BY HIS MOTHER AND NEXT FRIEND EILEEN BATTERSBY

APPLICANT

and THE GOVERNOR MOUNTJOY PRISON

RESPONDENT

Ex-Tempore Judgment of McGuinness J. delivered the 25th day of April 2001

In this case the Applicant, Leigh O'Connell who is suing by his mother and next friend Eileen Battersby, was remanded in custody to Mountjoy Prison. He has been charged with an offence of without lawful excuse damaging property, intending to damage the property, and being reckless as to whether such property would be damaged, contrary to Section 2 of the Criminal Damage Act 1991. He appeared before the Metropolitan Children's Court on the 20th April 2001 and his case was adjourned for a period of one week. Pursuant to Section 97 of the Children Act 1908 he was remanded by the judge of the District Court to Mountjoy Prison rather than to a "place of detention ", the judge having certified that the Applicant was "of so unruly a character that he cannot be safely detained in a place of detention other than at Mountjoy Prison without danger to person (sic.) including staff and a danger to himself. In addition the judge stated on the warrant that psychiatric and psychological reports were required in addition to treatment for drug withdrawal.

The Applicant challenges this remand on the grounds that certain matters do not appear on the face of the warrant remanding him to the prison. Through his Counsel, Mr Condon, he puts the case that the warrant should firstly recite on its face the section of the Children Act 1908 under which he was remanded (Section 97) and secondly that it should also recite on his face his date of birth in order to show that he comes within the definition of "a young person" under the Children Act 1908. In order to be dealt with under Section 97 and remanded on the certification of the District Judge it was necessary that he come within this definition.

Section 97 of the Children Act 1908, where relevant, provides as follows: -

"97(1) A Court of summary jurisdiction, on remanding or committing for trial a child or young person who is not released on bail, shall, instead of committing him to prison, commit him to custody in a place of detention provided under this part of this Act and named in the commitment, to be there detained for the period for which he is remanded or until he is thence delivered in due course of law:

Provided that in the case of a young person it shall not be obligatory on the Court so to commit him if the Court certifies that he is of so unruly a character that he cannot be safely so committed, or that he is of so depraved a character that he is not a fit person to be so detained. "

The major difficulty with the case put forward by the Applicant is that it is put on a hypothetical basis. There is no issue as to the fact that the Applicant fails within the definition of a "young person" under the Children Acts 1908-1957. It is also fully accepted that the learned District Judge heard relevant evidence as to the unruly and violent behaviour of the Applicant when previously held in a place of detention. There is no challenge to the certification by the judge pursuant to Section 97, which certification is properly set out on the face of the warrant. Indeed the learned judge went further than was strictly necessary in setting out that the Applicant was a danger to persons including staff and a danger to himself and in taking care to order that psychiatric and psychological reports together with treatment for drug withdrawal were required.

Thus the only issues which arise are the purely technical ones as to whether it is necessary to state on the face of the warrant (a) that the section of the 1908 Act under which the Applicant is remanded and (b) the Applicant's age or date of birth.

As regards the question of the Section, the warrant is headed Children's Acts, 1908 to 1957, Criminal Procedure Act 1967, Section 22 and it is clear that it is a warrant for remand in custody during the period of adjournment of the case rather than a warrant arising out of a conviction. It therefore appears clear that the only section to which the warrant could apply is Section 97. Where the title of the relevant Acts, the charge against the Applicant, the fact of the remand, and the certification of the District Judge are all clearly set out on the face of the warrant it does not seem to me that it is necessary in addition to set out the number of the particular section involved.

As far as the age of the Applicant is concerned, it is true that, as pointed out by Mr Condon, the Summary Jurisdiction Rules 1909 (Statutory Rules and Orders 1909 No 952), which refer to the Children Act 1908, provide a number of forms of committal to places of detention which contain a recital of the date of birth of the child or young person concerned. However, these forms do not refer to committal to prison either on conviction or on remand. No form in regard to Section 97 of the 1908 Act is provided either in the 1909 Rules or in the District Court Rules 1997. It is clear that Section 97 can only be operated in the case of a young person as defined under the Children Act. However, I do not consider that it is essential that this age requirement be recited on the face of the warrant.

This of course does not mean that if there were to be an error in regard to the age of a person being committed to Mountjoy Prison under Section 97 he would have no way of rectifying the matter. It is quite clear that if such an error had occurred there would on the evidence be clear grounds to challenge the remand. The fact that the accused's date of birth is not recited on the warrant does not deprive him of a remedy if, as a matter of fact, he is not a "young person". In the instant case, however, the Applicant accepts that he is a "young person ". The fact that his date of birth is not recited on the warrant does affect the fact that he has properly been committed on remand to Mountjoy Prison pursuant to Section 97 of the Children Act 1908.

I would therefore dismiss the appeal.