Supreme Court: Claim of juvenile remission’s unconstitutionality rejected
The Supreme Court has dismissed the appeal of a minor who argued that he should be entitled to be considered for enhanced remission in the same way as adult prisoners are under the Prison Rules.
B, who could not be named as he is a minor, pleaded guilty in 2017 to one count of robbery. He was sentenced by the Dublin Circuit Criminal Court to three years’ detention with 20 months’ detention suspended in Oberstown Children’s Detention Centre.
In 2013, in Byrne (A Minor) v Director of Oberstown  IEHC 562, Mr Justice Gerard Hogan held that a minor serving a sentence of detention in Oberstown was entitled to the standard rate of one-quarter remission. Children are now granted standard remission for good conduct. Since he was entitled, after Byrne, to ordinary remission amounting to one-quarter of his total sentence, the custodial aspect of B’s detention order was due to expire on 23 May 2018. His solicitor sent a letter applying for consideration for enhanced one third remission. He said that a refusal to permit him to apply placed him in a worse position than adult prisoners.
The Director of Oberstown Children Detention Centre replied in January 2018, having taken advice in relation to the enquiry. It stated that consideration was currently being given by the Department of Children and Youth Affairs to the commencement of the provisions of the Children Act 2001 providing for remission in children detention schools. B’s solicitor responded by inviting the Director of Oberstown to create rules that would permit him to apply for enhanced remission. No substantive answer was received, and leave to seek judicial review was sought and granted on 26 February 2018.
Judgment was delivered on 25 October 2018 by Ms Justice Leonie Reynolds (B v The Director of Oberstown  IEHC 601). She rejected his claim that a failure to consider an application for enhanced remission from a juvenile offender constituted a breach of the guarantee of equality before the law enshrined within Article 40.1 of Bunreacht na hÉireann.
She said that Article 40.1 does not require identical treatment of all persons without recognition of different circumstances. B was subject to the same regime as all other juvenile offenders detained under the Children Act 2001, and the regime in place for child offenders detained in Oberstown was substantially different from that which applied to adult prisoners detained in prisons.
He appealed to the Supreme Court.
B relied on the Byrne judgment for the proposition that juvenile offenders detained in Oberstown are entitled to apply for enhanced remission. He submitted that s.151(4) of the Children Act 2001 contemplated that young offenders detained in a children detention school could earn remission “in the same manner as other young offenders and, for that matter, adult prisoners”.
He argued that Oberstown was obliged, under Article 40.1, and the principles in East Donegal Co-operative v The Attorney General  I.R. 317, to operate the remission regime in accordance with the guarantee of equal treatment. He submitted that this guarantee was violated if the law differentiated between offenders with regard to remission eligibility.
He argued that he should be entitled to compare himself with adult offenders for the purposes of the constitutional rights to liberty, fair procedure and natural justice, referring to the judgment of Mr Justice Donal O’Donnell in M.R. and D.R. v An tArd Chlaraitheoir  3 I.R. 533: “Any equality argument involves the proposition that like should be treated alike… It is important not simply that a person can be said to be similar or even the same in some respect, but they must be the same for the purposes in respect of which the comparison is made. A person aged 70 is the same as one aged 20 for the purposes of voting, but not of retirement.”
B argued that the context was that of custodial detention imposed by a court, and that a comparison between a 17-year-old and a 19-year-old, or even a 30-year-old, in custody demonstrates no difference in terms of the constitutional rights retained by them.
He relied on the judgment of Ms Justice Una Ní Raifeartaigh in S.F. v Director of Oberstown  IEHC 829 where she held that the educational focus, and the quasi-parental role of the Director, did not mean that a young person in Oberstown had fewer constitutional safeguards in relation to such measures than an adult in prison. B asserted that the difference in age between a 17-year-old and an adult offender was unlikely to seriously affect their rehabilitation.
B submitted that Ms Justice Reynolds erred in finding that an enhanced remission scheme could conflict with the planned and coordinated release of juveniles.
The Supreme Court noted the In Re Article 26 and the Employment Equality Appeal Bill 1996  2 IR 321 judgment, where it was stated that Article 40.1 “does not require the State to treat all citizens equally in all circumstances. Even in the absence of the qualification contained in the second sentence, to interpret the Article in this manner would defeat its objectives.”
The court said classifications based on age could not be regarded as, of themselves, constitutionally invalid. However, they must, as per the judgment of Mr Justice Donal Barrington in Brennan & Ors. v Attorney General  I.L.R.M 449, “be for a legitimate legislative purpose…it must be relevant to that purpose and each class must be treated fairly.”
Stating that “childhood is a transient status”, Ms Justice Iseult O’Malley stated: “It may well be, therefore, that a particular 17-year-old is more mature than a particular 19-year-old, or even a 30-year-old. However, the Oireachtas has determined that the 17-year-old should be treated differently because of his age… Since the Constitution leaves it to the Oireachtas to decide when the status of childhood ends, this differential treatment can only be challenged on the basis that it is, in principle, unconstitutionally invidious. That argument has not been made in this case.”
B’s claim of inequality was “not well founded” and could be successfully maintained “only if the rationale of the Children Act 2001, which distinguishes clearly between children and adults, were to be challenged and undermined”. The court said that B sought to be “included in a statutory scheme that by its terms excludes him. That raises issues in relation to the separation of powers which, while not necessarily fatal to such a claim, have simply not been addressed in these proceedings.”
The appeal was dismissed.
© Irish Legal News Ltd 2021