Court rejects claim teen was entitled to remission on same basis as adults

The Supreme Court has rejected claims that, when detained in Oberstown Children Centre, a teenager was entitled to be considered for enhanced one-third remission on the same basis as adult prisoners.

The five-judge court said it could not accept that the penal regime that applies to all children should be compared with that established for adults.

The presumption of the legislature, that the differences between adults and children call for different regimes, has “not been shown to be factually incorrect or unfair in principle”, it ruled in a unanimous judgment on Wednesday.

Giving the judgment, delivered electronically, Ms Justice Iseult O’Malley noted the applicant pleaded guilty in 2017, when he was a teenager, to one count of robbery.

He was sentenced by Dublin Circuit Criminal Court to three years’ detention, backdated to May 2017, with 20 months suspended, in Oberstown Children Centre.

Arising from a High Court judgment in other proceedings concerning an “unjustified distinction” between two categories of young offenders, he was entitled to ordinary remission, one quarter of his total sentence, with the effect his detention was due to expire in May 2018.

He appeared to have made good progress while in detention and his solicitor sought in early 2018 to have him considered for enhanced remission.

When the director of Oberstown noted in a reply the Department of Children and Youth Affairs was considering the commencement of provisions of the Children Act 2001 providing for remission in children detention schools, the solicitor asked the Oberstown authorities to consider making rules that would permit his client to apply for enhanced remission.

When no substantive answer was received to that request, the applicant took judicial review proceedings against the director, the Minister for Children and Youth Affairs, Ireland and the Attorney General.

After the High Court rejected his case, the Supreme Court agreed to hear an appeal on the basis the issues might affect a significant number of individuals.

In its judgment, Ms Justice O’Malley said the appellant’s core claim is that he has not been treated equally vis-a-vis adults who, he claimed, are objectively in the same situation as him in that they are undergoing custodial sentences.

This claim 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.

Children are still in the process of development and the policy of the legislature and courts was to assist in that process in a positive way where practicable, she said.

This appellant had not provided any factual basis upon which the court could compare the regime to which he is subject in Oberstown with that applicable to adults. It had not been argued the system of incremental incentives and planned release under the Oberstown regime was not more suitable for the reality of dealing with young persons than the system of long-term incentives available to adults.

While it was true release from Oberstown into the community, under the terms of the Children Act, does not fully equate with the unconditional liberty of a person whose sentence has expired, that should be seen as part of the process leading to the ultimate objective of reintegration into the community.

The court could not accept the penal regime that applies to all children should be compared with that established for adults, she said.

A case such as this raised the issue of “underinclusivilty” as the appellant wished to get a benefit available on a statutory basis only to a category of persons to which he does not belong. He was essentially seeking an order to be included in a statutory scheme which by its terms excludes him.

That raised issues concerning the separation of powers which, while not necessarily fatal to this claim, had “simply not been addressed in these proceedings”.

On foot of those and other findings, the appeal was dismissed.