THE HIGH COURT
JUDICIAL REVIEW
[2001 No. 310 J.R.]

BETWEEN
JD (A MINOR) 
SUING BY HIS GRANDMOTHER
AND NEXT FRIEND BD

APPLICANT
AND
JUDGE MICHAEL CONNELLAN, THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

AND

THE HIGH COURT

JUDICIAL REVIEW

[2001 No. 368 J.R.]
BETWEEN

JD (A MINOR) SUING BY HIS GRANDMOTHER
AND NEXT FRIEND BD

APPLICANT
AND
JUDGE MIRIAM MALONE, THE DIRECTOR OF PUBLIC PROSECUTIONS   IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
       
Judgment of Mr. Justice Murphy dated the 27th day of June, 2003.

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1. Background
The applicant was born on the 20th December, 1985 and was at the material, time a fifteen year old boy with a significant history of personal and family difficulties. On the 10th May, 2001, he was remanded in custody in Mountjoy Prison, an adult penal institution, by Judge Michael Connellan having been certified as unruly, pursuant to s. 97 (1) of the Children Act, 1908. On the 24th May, 2001, he was sentenced to one month's imprisonment in Mountjoy Prison by Judge Miriam Malone having been certified as unruly, pursuant to s. 102 (3) of the Children Act, 1908.
The remand and imprisonment was in respect of an unauthorised taking on10th May, 2001. It appears from the affidavit of John Quinn, Solicitor for the 
applicants that there was no room in Trinity House.
Mr. Durcan, S.C. for the applicant argued that the relevant sections of the Children Act, 1908 are unconstitutional.
Mr. Paul O'Higgins, S.C. for the respondents submitted that the matter was moot and res judicata and beyond the scope of the leave given.

2. Pleadings.
Similar notices of motion returnable for the 31st July, 2002, in respect of each case sought the following orders:
l.	An order of certiorari by way of application for judicial review quashing the committal warrant holding the applicant at Mountjoy 
	Prison and dated the 10th May, 2001, issued by Judge Connellan and dated the 14th May, 2001, issued by Judge Malone in the respective proceedings.

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2.	A declaration by way of judicial review that s. 97 (1) (in the first case) and s. 102 (3) of the Children Act, 1908 was not carried forward by 
Article 50.1 of the Constitution of Ireland 1937 and in particular that each part of the section which reads (in both cases) as follows:
 "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".
Both applications were grounded on the respective statements to ground the application for leave to apply for judicial review dated the 14th May, 2001 and the 12th July, 2001, respectively, the order of Mr. Justice Finnegan perfected on the 12th July, 2001, in respect of both applications, the nature of the case and the reasons to be offered.
3.  Affidavits
3.1	The grounding affidavit of John Quinn in the first case referred to the applicant's appearance before Judge Connellan and in the Children's Court on 10th May, 2001, in respect of a charge of an unauthorised taking of a motorcar. The State applied to have the applicant certified unruly and to be detained in Mountjoy Prison. Evidence was heard from Mr. Michael Donnellan and Mr. Declan Enright from Trinity House in respect of an incident in which the applicant's bedroom was damaged on Thursday 3rd May, and that there was currently no remand places available in Trinity House.
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The deponent, as solicitor for the applicant, submitted that there was no evidence of any remand place actually in existence as set out in The State (Hanly) v. Governor of Mountjoy Prison and District Justice Breathnach CVIII I.L.T 102. Judge Connellan asked that inquiries be made of Oberstown and St. Michael's. While initially it was indicated that there were no remand places available in either institution, a place was made available in St. Michael's Remand and Assessment Unit. Judge Connellan made an order remanding the applicant in custody to Mountjoy Prison, having certified him "unruly".
The deponent also referred to an Article 40.4 application being made on behalf of the applicant in relation to his then current detention.
3.2	In the second case, Mr. Quinn referred to the appearance before Judge Miriam Malone in the Children's Court on 24th  May, 2001. The applicant pleaded guilty to the charges. Judge Malone indicated that she intended sentencing the applicant to one month in Trinity House. She heard evidence from Mrs. Gertie Rafferty and Mr. Declan Enright of Trinity House and made an order certifying the applicant "unruly" and sentencing the applicant to one month in Mountjoy Prison.
4.	Committal Warrants
4.1	The committal warrant (remand) signed by Judge Connellan on 10th  May, 2001, stated as follows:
1.	And WHEREAS I have certified that the said Accused/Defendant to be of so unruly a character that he cannot be safely detained in a Place of 
	Detention at Trinity House or St. Michael's Assessment Centre.

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2.	THIS IS TO COMMAND YOU to whom this warrant is addressed to keep the accused in Mountjoy Prison Dublin, under s. 97 of the 1908 
	Children Act, there to be detained by the Governor thereof until the above time of adjournment (being a period not exceeding eight days
	 from the date hereof) when you shall have him in the said sitting to be further dealt with according to law. He was so unruly in that he cannot
	 be committed to Trinity House.

4.2	The following certificate was endorsed on the warrant of Judge Miriam Malone in respect of the second case:
Charge Sheet 632/2001 Bridewell:
"I certify that JD (a young person) is so unruly a character that he cannot safely be detained in a place of detention namely Trinity House and I order that the said JD be detained in a place of imprisonment namely Mountjoy Prison, under s. 102 of the Children Act 1908."
It would appear that there were other charge sheets of similar nature.
5. 	 Legislation
5.1	The Children Act, 1908.:-
	Section 97 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 the Act and named in the
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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.
(2)       A commitment under this section may be varied or, in the case of a young person who proves to be of so unruly a character that  he        cannot be safely detained in such custody, or to be of so depraved a character that he is not a fit person to be so detained, revoked by any court of summary jurisdiction acting in or for the place in or for which the court which made the order acted, and if it is revoked the young person may be committed to prison."
Section 102 provides as follows:-
"102-(1)	A child shall not be sentenced to imprisonment or penal servitude for any offence, or committed to prison in default of payment of a fine, damages or costs.
(2)	A young person shall not be sentenced to penal servitude for any offence.
(3)	A young person shall not be sentenced to imprisonment for an offence or committed to prison in default of payment of a fine, damages, or costs, unless the court certifies that the young person is of so unruly a character that he cannot be detained in a place of
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detention provided under this part of this Act, or that he is of so depraved a character that he is not a fit person to be so detained."
5.2	The Children Act, 1908, Adoption Order, 1928 provides, inter alia, that references to the Secretary of State in the Children Act 1908 shall be construed as reference to the Minister of State mentioned in the Schedule being the Minister for Justice, Education or Local Government and Public Health. Section 69 (3), and s. 87 (1) shall cease to have an effect and so much of s. (1) (33) as is inconsistent with the provisions of the order shall cease to have effect.
5.3	Places of Detention (State Contributions) Regulations, 1928.
The Minister for Education, in exercising the powers conferred by s. 110(2) of the Children Act, 1908, as adapted by or under the Adaptation of the Enactments Act, 1922, duly made a regulation that the contribution for moneys provided by the Oireachtas towards the cost of maintaining a child or young person committed to custody in a place of detention on remand or committal for trial or in lieu of imprisonment or in default of payment of a fine shall be at a rate of two shillings and six pence per day to be inclusive of any capitation grant for the provision in such place of detention of closing for the child or young person in respect of whom such contribution is made with provisions for reimbursement to the authorities of the Garda Siochana for moneys provided by the Oireachtas.

5.4	Criminal Justice Act, 1960
Section 13 of this Act provides for the sentencing of young persons to be detained in St. Patrick's Institution. The section provided as follows:
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"13.-(1)	Where a person who is not less than seventeen nor more than twenty-one years of age is convicted of an offence for which he is liable to be sentenced to a term of penal servitude or imprisonment, he may, in lieu of being so sentenced, be sentenced to be detained in Saint Patrick's Institution for a period not exceeding the term for which he might have been sentenced to penal servitude or imprisonment, as the case may 
be.
(2)	Where a person who is less than seventeen but not less than sixteen years of age is convicted of an offence for which he would, if he were not less than seventeen years of age, be liable to be sentenced to a term of penal servitude or imprisonment and the court considers that none of the other methods in which the case may legally be dealt with is suitable, he may be sentenced to be detained in Saint Patrick's Institution for a period not exceeding the term for which he might, if he were not less than seventeen years of age, be sentenced to penal servitude or imprisonment, as the case may be.
(3)	The Minister may make regulations providing for the rule and management of and the constitution of a visiting committee for Saint Patrick's Institution in so far as it is being used for the detention of persons sentenced under this section and for the classification, treatment, employment and control of such persons and may, by the regulations, apply, to such extent and

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subject to such modifications, if any, as may be specified therein -
                         (a)  the Prisons Acts, 1856 to 1956, and the rules made thereunder, whether before or after the commencement of this Act, and
		 (b) regulations made, whether before or after the commencement of this Act, under sub-section (2) of s. 4 of the Prevention of Crime Act, 1908,
       in relation to Saint Patrick's Institution in its use aforesaid."
5.5	Constitution of Ireland, 1937 
	Article 50.1 provides:
"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstat Eireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."
6.	Leave to apply for Judicial Review
The order of 141h May, 2001, granted leave to the applicant to apply by way of application for judicial review for two reliefs:
1.	An order of certiorari quashing the committal warrant holding the applicant at Mountjoy Prison and dated 10`h May, 2001, issued by the

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first named respondent and proceedings entitled "The Director of Public Prosecutions (at the suit of Garda Michael O'Rourke) and JD" 
2.	A declaration that s. 97 (1) of the Children Act, 1908 was not carried forward by Article 50.1 of the Constitution of Ireland 1937 and in 
	particular that part of the section that provides as follows:
"Provided 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 commit, or that he is of so depraved a character that he is not a fit person to be so detained."
The grounds for such relief were set out as follows:
	1.	The applicant's detention at Mountjoy Prison on foot of the above mentioned committal warrant is in breach of his constitutional rights and in particular his rights under Article 40.3
     2.     Section 97 (1) of the Children Act, 1908, failed to vindicate the   right of the applicant pursuant to Article 40.3 of the Constitution of Ireland                1937.
3.	The provisions of s. 97 (1) of the Children Act, 1908, are inconsistent with justice, prudence and charity.
A similar order was made in relation to s. 102 (3) on the same grounds with the addition of the fourth ground as follows:
"The provisions of s. 102 (3) of the Children Act, 1908, are inconsistent with the rights of the applicant as a young person pursuant to the European

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Convention of Human Rights and Fundamental Freedoms and in particular Article 6 thereof."
7.	Respondents' statement of opposition.
On the 22nd November, 2002, the respondents stated, inter alia, as follows: 
(iv)	These respondents deny that the impugned provision of the Children Act, 1908 fails to vindicate the rights of the applicant either as alleged or at all and the said particulars thereof are hereby denied as if they were herein set forth and traversed seriatim.
(v)	Further or in the alternative these respondents deny that the impugned provisions of the Children Act, 1908 are inconsistent with justice, prudence and charity an /or the rights of the applicant as a young person either pursuant to the European Convention for the protection of Human Rights and Fundamental Freedoms as alleged or at all. 
(vi)	 These respondents deny that they have failed to vindicate the rights of the applicant either as alleged or at all and the said particulars thereof are hereby denied as if they were herein set forth and traversed seriatim.
(vii)	These respondents deny that an order should issue either by way of certiorari or a declaration in favour of the applicant against these respondents either as alleged or at all and the said particulars thereof are hereby denied as if they were herein set forth and traversed seriatim.
(viii)	These respondents will contend at the hearing of the action that the issue of the lawfulness or otherwise of the applicant's detention has

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already been determined by this Honourable Court and in the circumstances rely on the principle of res judicata.
(ix)	These respondents deny that the applicant is entitled to damages either as alleged or at all and the said particulars thereof are hereby denied as if they were herein set forth and traversed seriatim.
          (x)     These respondents deny that the applicant is entitled to the relief sought or to any relief.
8.	Submissions of the Applicant.
Counsel for the applicant submitted that the Court must have regard to the principle that pre 1922 statutes enjoy no presumption of constitutionality. He referred to The State (Sheerin) v. Kennedy [1966] I.R. 379. The provisions of the 1908 Act must be interpreted and construed having regard to the natural and imprescriptible rights of the child (M.F. v. Superintendent, Ballymun Garda Station [199111 I.R.189).
The nature of the rights enjoyed by the child were discussed by Geoghegan J. in F.N. v. Minister for Education and Ors [1995] 1 I.R. 409 as follows:
"The vindication by the State of a child's constitutional rights has been further elaborated upon by the Supreme Court in the Adoption (No. 2) Bill 1987
 [1989] I.R. 656 and in MF v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189. Having regard to the principles enunciated in these cases, I would take the view that where there is a child with very special needs which cannot be provided by the parents or guardian there is a constitutional obligation on the State under Article 42, s. 5 of the Constitution to cater for those needs in order to vindicate the constitutional rights of the child."

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In Director of Public Prosecutions (Murphy) v. P. T. [1999]3 I.R. 254 McGuinness J. said at 269-70:
"I have no difficulty in accepting that the District Court has, under the Constitution, a general duty to consider and to promote the welfare of a child who appears before it on a criminal charge. This duty will probably be most urgent and most relevant when ...the court comes to the point of pronouncing sentence."
It was submitted that the finding by either of the first named respondents that the applicant was so unruly that he could not be detained in a place of detention provided for under the Act did not terminate or diminish his constitutional rights or the State's constitutional duties towards him. If anything such unruliness is an indication of the extent of the special needs of a child. There was no evidence that a period of imprisonment would meet the needs of or promote the welfare of the child. It was submitted that the first named respondents failed to have regard to the principles set out in s. 3 of the Guardianship of Infants Act, 1964 which states:-
"Where in any proceedings before any court the custody, guardianship or upbringing of an infant ... is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration."
It was further submitted that there was no evidence that the welfare of the applicant was regarded as the first and paramount consideration. Not alone were no directions made as to the conditions under which the applicant was to be detained but it would appear that no such directions could have been made as the 1908 Act does not so provide.
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It was submitted that ss. 97 (1) and 102 (3) of the 1908 Act are contrary to the natural and imprescriptable rights and personal rights of the child under the Constitution. These sections violate their right to trial in due course of law in allowing them to be detained in an adult prison on the basis of a determination by the District Court that they are "unruly" or "depraved". (See State (Sheerin) v. Kennedy[1966] I.R. 379.] The section discriminates between child offenders themselves. It violates the right to personal liberty of a child by justifiably subjecting the child to the regime of an adult penal institution without special treatment. It violates their right to bodily integrity. It further violates their right to a good name by allowing the District Court to make a finding that they are "unruly" or "depraved" which would have negative connotations in the context of an adult prison.
If the legislation were to attempt to fulfill the purpose of protecting the rights of other children, it was submitted that such measure disproportionably interferes with the rights of the child. The aim could be achieved in a way that does not so interfere with the rights of the child.
Counsel for the applicant referred to Green v. Governor of Mountjoy Prison and Others [1995] 3 I.R. 541 where s. 102 (3) was discussed. The High Court rejected an argument that the section was unconstitutional having regard to the constitutional rights of the applicant who had been detained in similar circumstances. The Supreme Court decided the case on the basis that the certificate issued by the District Court Judge was not valid. However, Denham J. did state, in an obiter manner, at 550:
"In view of the Constitution, and our ever deepening knowledge of sociology, psychology and psychiatry, the sentencing of a disturbed

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fifteen year old girl to imprisonment at Mountjoy Prison is a matter for concerned consideration."
Counsel for the applicant submitted that these concerns are reflected in the provisions of the Children Act, 2001 which purports to replace the 1908 Act with a modern comprehensive statute. When fully implemented it will abolish both sections the subject of this judicial review.
It is submitted by counsel for the applicant that the power set out in the sections under review was reflective of a time when the law in general provided little protection to the rights of children but that the Act was then regarded as progressive in that it abolished the death penalty for children under sixteen. It also established separate courts for juvenile offenders.
It was submitted that the provisions of the 1908 Act at issue could not have survived the passage of the Constitution of Ireland 1937 which guarantees a minimum set of rights for all citizens.
The detention of the applicant pursuant to s. 102 (3) is in breach of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and, in particular, Articles 3, 5 and 6 thereof.
Article 3 guarantees the freedom from torture and inhuman and degrading punishment or treatment.
Article 5 protects the right to liberty of an individual with certain expressed exemptions.
Article 5(1)(a) provides for the lawful detention of an individual following conviction by a competent court. As it is submitted that s. 102 (3) is inconsistent with

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the Constitution and, hence, not carried over into law by virtue of Article 50.1 of the Constitution it is submitted that the detention of the applicant on the 24th May, 2001 and thereafter was not lawful. Accordingly it does not come within the ambit of Article 5(1)(a) of the European Convention.
In relation to minors article 5(1)(d) states that the detention is allowed for the purpose of education and supervision but it is submitted that this provision is not applicable to this case as there is no evidence for the purpose of sentencing the applicant to Mountjoy Prison was educational rather than punitive in nature. 
Reference was made to Bouamer v. Belgium [1989] 11 E.H.R.R. 1 and DG v. Ireland [2002] 35 E.H.R.R. 33.
Article 6 of the European Convention guarantees the right to a fair trial. It is submitted that the procedures pursuant to which a District Judge certifies a child as unruly and sentences him to imprisonment infringes the right to a fair hearing guaranteed under that Article.
9.	Submissions on behalf of the Respondents
	Counsel for the respondents referred to the previous application made in this matter to the High Court pursuant to Article 40.4 on the 24th May, 2001, where Kelly J. declined to interfere with the criminal proceedings before the Children's Court.
In relation to the second set of proceedings, the applicant pleaded guilty. Judge Malone indicated that she intended sentencing the applicant to one month in Trinity House. However, having heard evidence from the Deputy Director of Trinity House School and of Mr. Enright of Trinity House, she made an order certifying the applicant as "unruly" and sentenced him to one month in Mountjoy Prison in

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accordance with the provisions of s. 102 (3) of the 1908 Act. It would appear that the applicant was legally represented.
There was no evidence that the child was one with special needs nor was there any evidence before the Court of his significant history of personal and family difficulties. No evidence was given of the conditions in which he was detained in Mountjoy Prison (nor was such evidence given to this Court).
There is no suggestion that there was not sufficient evidence before Judge Connellan when he made the earlier order.
It is submitted that the applicant's case must be that, irrespective of the facts, the provisions of the two sections failed to vindicate the applicant's rights under Article 40.3 of the Constitution and were, therefore, inconsistent with and not carried forward by Article 50.1 of the Constitution. Furthermore, in the case of the second set of proceedings, it was submitted that the applicant must establish on the basis of the facts contained in the two affidavits filed on his behalf that the provisions of s. 102 (3) are inconsistent with the rights of the applicant pursuant to article 6 of the European Convention on Human Rights and Fundamental Freedoms which was the only article in respect of which leave was granted.
The applicant referred to the rights to liberty, equality, and bodily integrity, to trial in due course of law and to a good name in respect of which he has not leave to apply for judicial review. The leave was limited to matters arising under Article 40.3 of the Constitution.
The respondents submit that the provisions of the two sections of the Children Act 1908 do not infringe on any of the rights to which the applicant refers. That section of Article 40 reads as follows:

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"3.1	The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizens.
2.	   The State shall, in particular, by its laws, protect as best it may without unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."
While the 1908 Act does not enjoy a presumption of constitutionality it is clear that the onus of establishing the inconsistency of the provisions of the 1908 
the Constitution is placed on the person who challenges their continued validity (see O'Higgins C.J. in Norris v. Attorney General [1984] I.R. 36 and A.G. v. Paperlink Limited [1984] I.L.R.M. 373 and Kelly, The Irish Constitution, 3'd ed., at pp. 466-467).
Section 102 (3) which is similar to the relevant portion of s. 97 has been considered by the High Court and the Supreme Court on a number of occasions. The constitutionality of the section was expressly upheld by Blayney J. in J. G. v. Governor of Mountjoy Prison [1991] 1 I.R. 373 where the applicants were both fifteen year old girls who were convicted on criminal charges in the District Court. They were sentenced to periods of imprisonment in Mountjoy Prison ranging from between three and twelve months. The District Judge purported to issue certificates in relation to each of the applicants pursuant to the section. On an application to the High Court for an inquiry into the detention pursuant to Article 40.4.2 it was argued that their imprisonment constituted a failure to vindicate their constitutional rights. It was argued that the certificates were invalid in that the District Justice erred in law in finding that they were of depraved character as the term was too vague to be given meaning. Their application failed in the High Court.

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The applicant's reliance on the provisions of the Guardianship of Infants Act, 1964 is inappropriate in the circumstances. Firstly, the applicant did not seek or obtain leave to challenge the orders on that ground. Secondly, as McGuinness J. held in Director of Public Prosecutions (Murphy) v. P. T. [1999] 3 I.R. 254 the section does not apply to criminal proceedings. She very much doubted whether the section of the Guardianship of Infants Act 1964 can be carried over to apply to criminal proceedings against an accused who was, in that case, a fifteen year old minor.
It was further submitted that the applicant's attempted reliance in the provisions of the Children Act, 2001 was also misplaced. The consistency of the sections under review must be assessed by reference to those provisions and not to the provisions in any subsequent Act, particularly those which are not yet in force. In referring to the judgment O'Flaherty J in M. F. v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189 where reference was made to the Children Act now showing its age, O'Flaherty J. continued:
"Unless and until new legislation is introduced this Court must determine how it aligns with the Constitution and with other legislation governing the welfare of children. Providing the Act has the correct mechanisms it does not matter if some of its language may be in archaic terms."
The applicant's claim under the European Convention on Human Rights and 
Fundamental Freedoms must be limited to Article 6 thereof for which leave was 
given.
In his submission, counsel for the respondents says that there is a more fundamental reason why it is not open to the applicant to rely on article 6 or any other article of the Convention in order to impugn the constitutionality of the section. The

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applicant is precluded from doing so having regard to the decisions of the Supreme Court in In Re O Laighleis [1960] I.R. 93, Doyle v. Commissioner of An Garda Siochana [1999] 1 I.R. 249 and Adam v. Minister for Justice [2001] 3 I.R. 53. The Oireachtas has not determined that the Convention is to be part of domestic law. It may overlap with certain provisions of the Irish Constitution. While Barrington J. in Doyle v. Commissioner of an Garda Siochana had thought it helpful for an Irish court to look at the Convention when it was attempting to identify unspecified rights guaranteed by Article 40.3, this is not relied upon by the applicant and, in any event does not make the Convention part of Irish domestic law. For this reason it was not open to the applicant, in the respondents' submission, to rely on alleged breaches of the convention.
10. Decision of the Court
Almost a century ago the English parliament passed the Children's Act, 1908. It was seen as a progressive piece of legislation at the beginning of the 20th century. It abolished the death penalty for children below sixteen and established separate courts for juvenile offenders. The sections under consideration curtailed the previously wide powers of the court to send children to prison and limited the circumstances in which children could be imprisoned to those where the court had certified the child as being unruly or depraved.
This court must note the observation of O'Flaherty J. in M. F v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189 at 201:
"While the Children Act, 1908, may have been an enlightened piece of  legislation when enacted it is now showing its age."

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and the comprehensive decision of Blayney J. in J. G. v. Governor of Mountjoy Prison [1991] 1 I.R. 373.
Mr. Justice Blayney upheld the constitutionality of the section at 376-377 of that case as follows:
"The relevant part of s. 102 is sub-s. 3 and in my opinion this sub-section does not in any way represent an unjust attack on the applicants' constitutional rights. If anything, the sub-section defends their rights since it prohibits the imprisonment of young persons except in certain specified circumstances. The relevant circumstance here is that the young person is of so depraved a character that he is not fit to be detained in a place of detention provided under the Act. It seems to me that this is a perfectly fair provision as the other young persons in the place of detention must be protected against anyone who is so depraved a character as to be not fit to be detained there, and the young person to whom the sub-section is sought to be applied has the protection that an order for his imprisonment cannot be made unless the court comes to the conclusion that one or other of the relevant certificates should be given. So it is only if the court decides that a young person comes within one of the exceptions that a sentence of imprisonment may be imposed. In view of a young person having this protection, and of the necessity of other young persons being protected, I consider that the sub-section does not breach the constitutional rights of a young person and so was carried over by Article 50."
On appeal to the Supreme Court, sub nomine Greene v. Governor of Mountjoy Prison [1995] 3 I.R. 541, the Supreme Court did not adjudicate on the constitutionality of the section as they found that the certificates issued were not

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legally valid as not being in the form required by the section. It was submitted that there was nothing in the judgment of the Chief Justice which casted any doubt on the constitutionality of the section. The Chief Justice referred to The State (Holland) v. Kennedy [1977] I.R. 193 where Hamilton J. had previously decided, at 197, that:-
"It is the duty of the Courts to protect the rights of citizens and, in particular, the rights of "young persons" within the meaning of the Act of 1908. One of the rights conferred on young persons by that Act is the right not to be sentenced to imprisonment for an offence or committed to prison in default of a fine, damages, or costs, unless the court certifies that the young person is of so unruly a character that he cannot be detained in a place of detention provided under Part V of the Act."

That decision of Hamilton J., as he then was, was appealed to the Supreme Court Henchy J. stated at 201 that:
"The statute conferred jurisdiction to impose a sentence of imprisonment only when the court certifies that a young person is of so unruly a character that he cannot be detained in the provided place of detention. It was necessarily the statutory intention that a legally supportable certificate to that effect is to be a condition precedent to the exercise of the jurisdiction to impose a sentence of imprisonment."
Kenny J., at 203-204, stated:
"Before this power can be exercised, the statute provides that there must be a certificate given by the District Justice that the young person is of so unruly a character or is so depraved that he cannot be detained in a place
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of detention. It is thus a statutory condition precedent to the exercise of  the power to depart from the general rule (that a young person should not be sent to prison) that there should be such a certificate. The jurisdiction to exercise the power arises only where there is such a certificate."
Finlay P. in the course of his judgment in the State (O'Donoghue) v. Kennedy [1979] I.L.R.M. 109 at 112 said:
"I have come to the conclusion that the decision to certify a young offender as of unruly character is of the same status as any other decision in a criminal proceeding..."
The applicant referred to M.F. v. Superintendent, Ballymun Garda Station [1991]1 I.R. 189. I agree with the submission that the comment by Denham J. does not go as far as implying that the section is unconstitutional. The decisions of the High Court and the Supreme Court required that the provisions of the section be fully complied with; there is no suggestion in any of those judgments that the section was not carried over by Article 50.1.
The court may not depart from a decision of a court of equal jurisdiction. 
Parke J, in Irish Trust Bank v. Central Bank of Ireland [1976 - 7] I.L.R.M. 50 at 53 stated the position as follows:
"I fully accept that there are occasions in which the principle of stare decisis  may be departed from but I consider these are extremely rare. A court may depart from a decision of a court of equal jurisdiction if it appears that such a decision was given in a case in which either insufficient authority was cited or incorrect submissions advanced or in which the nature and wording of the

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judgment itself reveals that the judge disregarded or misunderstood an important element in the case of the arguments submitted to him or the authority cited or in some other way departed from the proper standard to be adopted in judicial determination."
The issue of the constitutionality of s. 102 (3) has already been determined by the High Court. There is no evidential basis for departing from the earlier decisions. 
I agree with counsel for the respondent that the principles relative to the determination of that section are equally applicable to s. 97 (1). That section was referred to by the Supreme Court in Flaherty v. Director of Oberstown Girls Centre (Unreported, Supreme Court, 15th  March, 1994) where one of the grounds relied on was that s. 97 did not have any application. The Supreme Court refused to order an inquiry under Article 40 having rejected the submission and dismissed the applicants appeal. It is submitted that if the Supreme Court had any concern about the validity of the applicant's detention on foot of the remand under s. 97 (1) it would have not dismissed the applicant's appeal.
The court has been referred to F.N. v. Minister for Education and Ors. [1995] 1 I.R. 409. This applied different principles then those arising in criminal proceedings. That case was referred to by McGuinness J. in Director of Public Prosecutions (Murphy) v. P. T. [1999] 3 I.R. 254 where MF. v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189 was distinguished from childcare cases. 
McGuinness J. stated at 269 as follows:
"O'Flaherty J. states clearly in this judgment that he is speaking of "cases concerning the care and custody of children" which are "possibly unique in 
that the fundamental rights of persons are an issue in litigation in which they

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are not represented." This is simply not the issue in proceedings where a child is charged with a criminal offence. It is not the situation in the instant case, where the accused has been granted legal aid and has at all times been represented by a very well known and experienced firm of criminal solicitors who have now instructed both junior and senior counsel.
The learned judge does not purport to deal with the Act in general, still less with criminal proceedings under Part IV of the Act."
Mrs. Justice McGuinness continued by referring to the general duty that the District Court has to consider and to promote the welfare of a child who before it on a criminal charge. However, she believed that this constitutional duty must be balanced and harmonised if possible with the other constitutional rights which prevail to the accused in a criminal trial. There is a danger, she said, that in doing so the constitutional parameters relevant to the criminal trial may be ignored or unjustly postponed. In addition, the pursuit of general assessments and wide ranging reports may very well result in evidence being presented to the Court which would in the normal course of a trial be inadmissible.
It does seem that the facts underlying this application are those contained in the grounding affidavits of Mr. Quinn. There is no evidence therein to ground many of the contentions made by the applicant with regard to the submissions that the learned judges did not consider the matter fully. It is clear that in both cases evidence was given by officers of Trinity House and St. Michael's Assessment Unit. In both cases there was a judicial determination in the light of that evidence. Judge Malone was mindful of a sentence in Trinity House but on hearing the evidence on behalf of that institution, made a determination certifying the applicant as unruly on the basis of

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the evidence given by Mrs. Gertie Rafferty, Deputy Director of Trinity House School, and Mr. Declan Enright also of Trinity House. I accept that these are the relevant facts before the Court. There is no evidence regarding significant history of personal and family difficulties or of a child with special needs. Mr. Quinn's affidavit in relation to the first case, [(2001) No. 310 J.R.] though somewhat more extensive than that in the second case, makes no reference to the needs or, indeed, to the personal and/or family difficulties.
There is, accordingly, nothing to distinguish this applicant with any other applicant appearing before the District Court in respect of which such a determination was made.
There is accordingly nothing to distinguish the circumstances of the applicant in this case from the other cases in which either or both of the sections was an issue. In J. G. v. Governor of Mountjoy Prison [1991] 1 I.R. 373, while the Supreme Court did not adjudicate on the constitutionality of s. 102 (3) it did not interfere with the decision of Mr. Justice Blayney in the High Court. Moreover, Hamilton C.J. in the 
Supreme Court had cited with approval a number of earlier decisions in none of which was there any doubt cast on the constitutionality of the sections. The judgment of Blayney J. at pp. 367-377 is clear.
The sub-section does not represent an unjust attack on the applicant's constitutional rights. If anything the sub-section defends the applicant's rights since it prohibits the imprisonment of young persons except in certain specified circumstances. The sub-section gives the applicant protection that an order for his imprisonment could not have been made unless the court came to the conclusion on the evidence that he was unruly and/or depraved and so certified. Blayney J. was of the view that there was a necessity of other young persons being protected. He

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considered that the sub-section did not breach the constitutional rights of a young person and so was carried over by Article 50. The court is not invited to disregard this precedent nor, in my opinion, are there facts which would so justify. The tests laid down by Parke J. in Irish Trust Bank v. Central Bank of Ireland [1976-7] I.L.R.M. 50 before departing from the principle of stare decisis are not met in this case.
It does seem to me that the distinction referred to by McGuinness J. in Director of Public Prosecutions (Murphy) v. P. T. [1993] 3 I.R. 254 between criminal charges and childcare cases apply to this case. McGuinness J.'s reference to O'Flaherty J.'s decision in M. F. v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189 in relation to cases concerning the care and custody of children are not the issue in proceedings where a child is charged with a criminal offence. Adopting that decision, McGuinness J. had no difficulty in accepting that the District Court has a general duty to consider and promote the welfare of a child particularly where he either pleads guilty or is found guilty of the charges laid against him. The constitutional duty to consider and promote the welfare of a child, must, however, be balanced and harmonised with the other constitutional rights which pertain to the accused in a criminal trial. The primacy of the welfare of the child with relation to the custody, guardianship or upbringing of an infant cannot be carried over to apply to criminal proceedings.
While there is no presumption of constitutionality with regard to pre-constitutional enactments, it is clear that this Court has considered the constitutionality of the relevant sub-sections as it remains part of the legislative framework.

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The provisions of the Children Act, 2001, have no application to the present case for two reasons. Firstly it refers to welfare proceedings and not to criminal proceedings. Secondly it has not been brought into force.
The arguments in relation to the European Convention on Human Rights and Fundamental Freedoms, is, of course, part of the domestic law. The applicant seeks to assert a separate base for impugning the validity of s. 102 (3) of the 1908 Act under the Convention. It does not seem that having regard to the decisions in In Re O Laighleis, [1960] I.R. 93 and Doyle v. Commissioner of An Garda Siochana [1999] 1 I.R. 429 which was followed in Adam v. Minister for Justice [2001] 3 I.R. 53 that this is permissible.
In the circumstances the Court rejects the application.
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1.	Section 97 (1) of the Children Act, 1908
2.	Section 102 (3) of the Children Act, 1908.
3.	J.G. v. Governor of Mountjoy Prison [1991] 1 I.R. 373.
4.	Norris v. Attorney General [1984] I.R. 36.
5.	Attorney General v. Paperlink Limited [1984] I.L.R.M. 373.
6.	Kelly "The Irish Constitution" (3rd Edition) at pp 466-467.
7.	Greene v. The Governor of Mountjoy Prison [1995] 3 I.R. 541.
8.	The State (Holland) v. Kennedy [1977] I.R. 193.
9.	The State (O'Donoghue) v. Kennedy [1979] I.L.R.M. 109.
        10.		M.F. v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189.
11.	Irish Trust Bank v. Central Bank of Ireland [1976-7] I.L.R.M. 50. 
12.	Flaherty v. The Director of Oberstown Girls Centre (Unreported, Supreme Court, 15th March, 1994).

13.	F.N. v. Minister for Education and Others [1995] 1 I.R. 409.
         14.	Director of Public Prosecutions (Murphy) v. P.T. [1999] 3 I.R. 254.
15.       In Re O Laighleis [1960] I.R. 93.
          16.	Doyle v. Commissioner of An Garda Siochana [1999] 1 I.R. 249.
17.      Adam v. Minister for Justice [2001] 3 I.R. 53.
18.	Gooden v. Waterford Regional Hospital (Unreported) Supreme Court 21 February 2001.
19.	State (Christopher Hanley) v. The Governor of Mountjoy Prison and District Justice Sean Breathnach (CVIII I.L.T. 102).