About this case:

• Citation:
  [2024] IEHC 523
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons stated that “having made a policy choice to exempt certain juvenile offenders from the mandatory life sentence, the legislature must embody same in legislation which complies with the constitutional guarantee of equality”.

Séamus Clarke SC and Keith Spencer BL appeared for the first applicant instructed by Connolly Finan Fleming Solicitors, Mark Lynam SC and Oisín Clarke BL appeared for the second applicant instructed by Connolly Finan Fleming Solicitors, Remy Farrell SC and Joe Holt BL appeared for the first and second respondents instructed by the Chief State Solicitor, and Feichín McDonagh SC and Kieran Kelly BL appeared for the third respondent instructed by the Chief Prosecution Solicitor.

Background

The applicants were charged with murder arising out of events alleged to have occurred in Blanchardstown, Co Dublin on 24 December 2023 while they were under the age of 18.

Both having turned 18 since their alleged offences, the applicants were no longer considered children for the purposes of the statutory protections afforded by the Children Act 2001, rendering them liable to a mandatory sentence of life imprisonment if convicted at trial pursuant to s.2 of the Criminal Justice Act 1990.

The applicants complained inter alia that the interaction of s.156 of the 2001 Act which provides that a child cannot be sentenced or committed to prison, with s.2 of the 1990 Act which imposes a mandatory life sentence in cases of murder, makes a distinction based upon age as at the date of sentencing as opposed to age as at the date of the alleged offence in a manner contrary to the equality guarantee in Article 40.1 of the Constitution.

The High Court

Having considered the relevant provisions of the 2001 Act, the 1990 Act and the Criminal Justice (Miscellaneous Provisions) Act 2023, Mr Justice Simons highlighted that the default sentencing principle under s.96(3) of the 2001 Act is that the age and level of maturity of a child offender should be taken into account in determining the nature of any penalty imposed.

The High Court outlined that it is apparent from the case law of the Court of Appeal that where an accused has ‘aged out’ of the 2001 Act, the focus for a sentencing judge is on the fact that the accused was a child at the time of their alleged offence and their age and level of maturity at the time of commission, finding that “a principle analogous to that expressly stated under section 96(3) of the Children Act 2001 forms part of the general principles of sentencing applicable to an adult”.

The court contrasted this position with s.2 of the 1990 Act which expressly excludes the possibility of imposing any sentence other than life imprisonment in cases of murder, noting that “the date of the criminal trial assumes a crucial significance in the context of the offence of murder. In contrast to other types of offence, the age of the juvenile offender as of the date of their conviction/sentence determines whether their age and level of maturity as of the time of the commission of the offence can be taken into account as a mitigating factor.”

Moving to consider the position in light of the equality guarantee under Article 40.1, the High Court found that the gravamen of the applicants’ challenge was that in circumstances where the Oireachtas recognises that the age and level of maturity of a juvenile offender are relevant considerations in sentencing, there was no objective justification for treating one class of juvenile offender less favourably by reference only to their age as of the date of sentencing.

Recognising that it is, in principle, legitimate to discriminate on grounds of age in determining the appropriate penalty for an offender if the difference in treatment is objectively justified, i.e. where predicated on the social function and capacity of a child as a potential detainee, Mr Justice Simons considered that the difference in treatment in cases of murder is predicated on the arbitrary feature of “aging out” prior to the date of sentencing, which does not affect the accused’s moral culpability and for which there is no objective justification.

Highlighting that the statutory scheme entails two age-based classifications — one between children and adults, and the other between two sub-sets of children by reference to their age at the date of sentencing — Mr Justice Simons opined that the second classification was not rationally connected with any legitimate legislative purpose.

The judge continued that “it cuts against the underlying purpose of section 96(3) of the Children Act 2001 by denying the benefit of the discretionary sentencing principles to a subset of juvenile offenders by reference to an arbitrary point of distinction, namely the fact that they have reached the age of eighteen years prior to being sentenced”.

The court concluded: “The current age of a juvenile offender does not affect their moral culpability as of the time of the commission of the offence of murder.”

Conclusion

Accordingly, the High Court determined that the statutory scheme pertaining to the sentencing of juveniles for murder, as currently formulated, does not comply with the guarantee of equality under Article 40.1 of the Constitution.

Musueni & Anor v Ireland & Ors [2024] IEHC 523