High Court: Director of Juvenile Diversion Programme incorrectly interpreted Children Act 2001
The former Director of the Garda Juvenile Diversion Programme was “operating under an incorrect interpretation” of the Children Act 2001 in applying a blanket policy that once a juvenile offender reached the age of majority, they could not be admitted to the Diversion Programme irrespective of their age at the date of the offence. Quashing the Director’s decision not to include an offender who admitted responsibility for offences when he was 17, Mr Justice Garrett Simons remitted the matter for reconsideration by the incumbent Director.
In 2017, S (who was 17 at the time) imitated an eleven-year-old girl on social media and requested a young boy to send pornographic images of himself via an app.
The young boy’s parents became aware of the situation and made a complaint to the Gardaí, who were able to trace the social media account to an IP address at S’s family home. The Gardaí executed a search warrant of the family home in the summer of 2017, during which S acknowledged that the social media account was his. A mobile phone held by S was found to contain over 500 images of child pornography.
S was formally arrested a number of months later – at this stage he had reached the age of majority.
S was charged with a number of offences under the Child Trafficking and Pornography Act 1998, having been accused of:
- (i) Sexual exploitation of a child;
- (ii) Possession of child pornography for the purpose of distribution and sale;
- (iii) Possession of in excess of 500 images of child pornography.
The Diversion Programme
Since the offences occurred before S reached the age of majority, he was therefore a “child” for the purposes of the Children Act 2001.
S’s solicitors submitted to the Gardaí that S fulfilled the statutory criteria governing admission to the Garda Juvenile Diversion Programme under Part 4 of the Children Act 2001.
Thereafter, S was interviewed by two Juvenile Liaison Officers from An Garda Síochána, who prepared suitability reports recommending that S not be included in the Diversion Programme.
In July 2018, the Director of the Garda Juvenile Diversion Programme, Superintendent Colin Healy, decided that S was unsuitable for inclusion in the Programme. S’s solicitor made additional submissions, however, Director Healy said S remained unsuitable. Further, Director Healy refused to provide reasons for S’s unsuitability.
Mistaken interpretation of the criteria
S submitted that Director Healy appeared “to be applying a blanket policy” to exclude anyone over 18 from the Programme – involving an incorrect interpretation of s.23 of the Children Act 2001. Statistics in support of this submission were exhibited, and Counsel for S argued that in the absence of reasons given for the July 2018 and September 2018 decisions, it was “not possible to say to what extent the decision …was informed by this mistaken interpretation of the eligibility criteria”.
At the outset of his judgment, Mr Justice Simons agreed that Director Healy was “operating under an incorrect interpretation of the legislation” – in that Director Healy maintained “the mistaken position that once a juvenile offender has reached the age of eighteen …he or she cannot be admitted to the Programme irrespective of the age as of the date of the offence”.
Decision amenable to judicial review
Director Healy and the Director of Public Prosecutions contended that a decision not to admit an offender to the Programme is subject to the same attenuated standard of judicial review as decisions of the DPP – that “an obligation to give reasons could only ever arise where mala fides or some improper motive or policy has been demonstrated”
Mr Justice Simons said that the two issues for determination were:
- 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 DPP;
- If the attenuated standard of review does apply, whether intervention by the Court by reference to this standard is justified on the facts of the case.
Firstly, Mr Justice Simons was satisfied that Director Healy’s decision not to admit S to the Diversion Programme was amenable to judicial review – he said that such a decision did not attract the attenuated standard of review applicable to decisions of the DPP.
It followed that Director Healy was required to provide reasons to a juvenile offender denied access to the Programme, if requested (Mallak v Minister for Justice and Equality  IESC 59 considered).
Mr Justice Simons said this did not mean it was “open season” in respect of decisions under Part 4 of the Children Act 2001, and that “[t]he Programme Director, as with any other public authority charged with the exercise of a statutory discretion, is entitled to curial deference”. Thus, he said, 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  1 IR 39, and Meadows v Minister for Justice and Equality  IESC 3”.
Mr Justice Simons added that, even if the attenuated standard of judicial review was applicable, “the peculiar circumstances of the present case would have triggered an obligation to state reasons”. Further, the material before the Court established “a prima facie case for saying that the Programme Director’s decision had been informed by a mistaken interpretation of the eligibility criteria governing admission to the Programme”.
Stating that Director Healy’s refusal to provide reasons in the peculiar circumstances of this case “frustrates the High Court’s supervisory jurisdiction by way of judicial review”, Mr Justice Simons said that to permit Director Healy “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” and that this “would be contrary to the rule of law”.
In all the circumstances, Mr Justice Simons granted an order of certiorari setting aside the July 2018 and September 2018 decisions, and an order remitting the matter of S’s admission to the Programme to the incumbent Director for reconsideration. Mr Justice Simons also said that the order restraining the DPP from pursuing the prosecution of S should remain in force
© Irish Legal News Ltd 2019