S. v The director of the Garda Juvenile Diversion Programme & ors [2019] IEHC 796 (22 November 2019)

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JUDGMENT of Mr Justice Garrett Simons delivered on 22 November 2019

1. The Oireachtas has put in place a detailed legislative framework under Part 4 of the

Children Act 2001 which provides for the diversion of juvenile offenders from the criminal

justice system in certain circumstances. In brief outline, juvenile offenders, who have

admitted responsibility for their actions, may, instead of being subject to prosecution, be

subject to alternative measures including cautions and ongoing supervision. This is

described as the “Diversion Programme”. The decision as to whether to admit an

individual offender to the Programme is to be made by reference to the statutory criteria

2. These judicial review proceedings present an important issue of principle as to the

operation of the Diversion Programme, namely, whether there is ever an obligation to

provide reasons for a decision not to admit an offender to the Programme. This issue of

principle arises against a backdrop where the Programme Director appears to be

operating under an incorrect interpretation of the legislation. The question of

interpretation centres on whether the threshold for admission to the Diversion Programme

is to be determined by reference to the age of an offender as of the date of the

commission of the offence, or, alternatively, their age as of the date when charges are

being considered. The Programme Director maintains the mistaken position that once a

juvenile offender has reached the age of eighteen years, then he or she cannot be

admitted to the Programme irrespective of their age as of the date of the offence.

Counsel on behalf of the Programme Director has informed the court that the Programme

is applied to such aged-out offenders on a concessionary basis only, i.e. on a non-

statutory or ex gratia basis. There is, however, no affidavit evidence before the court in

3. The Director of Public Prosecutions, through her counsel, accepts that the Programme

4. Notwithstanding their disagreement as to the interpretation of the legislation, both of the

State respondents submit that there is no obligation to provide reasons to an offender

who has been denied the benefit of the Diversion Programme. Both State respondents

submit that a decision not to admit an offender to the Diversion Programme is subject to

the same attenuated standard of judicial review as are decisions of the Director of Public

Prosecutions. It is said to follow from this that an obligation to give reasons could only

ever arise where mala fides or some improper motive or policy has been demonstrated.

5. The Applicant has been charged with a number of offences under the Child Trafficking and

Pornography Act 1998. More specifically, the Applicant has been accused of (i) the sexual

exploitation of a child; (ii) the possession of child pornography for the purpose of

distribution and sale; and (iii) the possession of in excess of 500 images of child

6. These offences occurred at a time when the Applicant had not yet reached the age of

eighteen years and was, accordingly, a “child” for the purposes of the Children Act 2001.

7. The nature of the offences has been set out in detail in the Statement of Opposition filed

on behalf of the Director of the Garda Juvenile Diversion Programme (“the Programme

Director”). In order to avoid any risk of prejudicing a criminal prosecution, certain details

8. The offences came to the attention of An Garda Síochána as a result of a complaint made

by the parents of a young male child. It seems that the young child had been engaged in

exchanges on social media with another individual. The social media account used by this

second individual represented that the account holder was an eleven-year-old girl. (In

fact, the account holder was the Applicant, a male aged seventeen years of age). The

account holder requested that the young child send certain pornographic images of

9. These matters subsequently came to the attention of the young child’s parents, and they

made a complaint to An Garda Siochana. Following an investigation, the police traced the

social media account to an IP address at the Applicant’s family home. The police applied

for and executed a search warrant in respect of the family home on a date during the

summer of 2017. The Applicant acknowledged that the social media account in question

was his, and handed over certain mobile devices to the police. On examination, a mobile

phone held by the Applicant was found to contain over 500 images of child pornography.

10. The Applicant indicated through his solicitor that he was accepting responsibility for his

criminal behaviour and that he would consent to being cautioned and supervised.

11. The Applicant’s parents secured a referral to a clinical psychologist, and the Applicant has

12. The Applicant was formally arrested a number of months later. The Applicant had, by this

13. There was then a lengthy exchange of correspondence between the solicitors acting on

behalf of the Applicant and An Garda Síochána. The solicitors addressed each of the

statutory criteria governing admission to the Diversion Programme, and outlined why it

was said that the circumstances of the Applicant’s case fulfilled same.

14. The Applicant was interviewed by two Juvenile Liaison Officers (“JLOs”) from An Garda

Síochána. Each of the JLOs prepared a suitability report in respect of the Applicant.

These reports recommended that the Applicant not be included in the Diversion

Programme. The investigation file, together with the suitability reports, was then

15. The Programme Director, Superintendent Colin Healy, has sworn an affidavit in these

“42. I, then Director of the Programme, duly considered the file, the Suitability Reports,

the correspondence from the Applicant’s Solicitor and the psychological Reports

provided and, having discussed the matter with the Gardai involved, decided that

43. On 4 September 2018, having considered further submissions from the Applicant’s

Solicitor, I confirmed that the Applicant remained unsuitable for inclusion in the

Garda Youth Diversion Programme. In response to letters of 6 and 25 September

2018 from the Applicant’s Solicitor seeking reasons for the Applicant’s unsuitability,

The Applicant’s referral does not fulfil the criteria for inclusion in the Garda

Diversion Programme. The matter has been referred to the Superintendent,

16. More generally, the Applicant is currently in third level education. He has not come to the

adverse attention of An Garda Síochána since the events the subject-matter of these

17. Part 4 of the Children Act 2001 has put in place a detailed legislative framework which is

intended to regulate the diversion of juvenile offenders from the criminal justice system.

The purpose and objective of the Diversion Programme are set out as follows at sections

“18. Unless the interests of society otherwise require and subject to this Part, any child

and who accepts responsibility for his or her criminal or anti-social behaviour shall

be considered for admission to a diversion programme (in this Part referred to as

19.(1) The objective of the Programme is to divert any child who accepts responsibility

for his or her criminal or anti-social behaviour from committing further offences or

(2) The objective shall be achieved primarily by administering a caution to such a child

and, where appropriate, by placing him or her under the supervision of a juvenile

liaison officer and by convening a conference to be attended by the child, family

18. The legislation prescribes certain qualifying criteria which must be fulfilled before a “child”

(as defined) is eligible to be considered for admission to the Diversion Programme (“the

Programme”) as follows. The offence or anti-social behaviour must have occurred at a

time when the offender was under the age of eighteen years. The offender must accept

responsibility for his or her criminal or anti-social behaviour, and must consent to be

cautioned, and, where appropriate, to be supervised by a juvenile liaison officer.

19. (For the sake of completeness, it should be noted that the Minister for Justice and

Equality is empowered under section 47 of the Children Act 2001 to make regulations

providing that prescribed criminal behaviour “of a serious nature” shall be excluded from

admission to the Programme (unless the Director of Public Prosecutions directs

otherwise). To date, the Minister has not made any such regulations. In principle,

therefore, the Programme is available—and has been applied in practice—even in the case

of serious offences such as murder. (See page 17 of the Section 44 Monitoring

20. Once these qualifying criteria have been fulfilled, it is then the “function” of the

Programme Director to decide whether to admit a child to the Programme. (Section

24(1)). The principal statutory criteria which govern this decision are as follows.

(i) The Director must be satisfied that the admission of the child to the Programme

would be appropriate, in the best interests of the child and not inconsistent with the

(ii). When the admission of a child to the Programme is being considered, any views

expressed by any victim in relation to the child’s criminal or anti-social behaviour

shall be given due consideration, but the consent of the victim shall not be

21. The legal effect of admission to the Programme is to bar a prosecution for that offence.

“49.(1) A child shall not be prosecuted for the criminal behaviour, or any related

behaviour, in respect of which he or she has been admitted to the Programme.

(2) A child who has been admitted to the Programme in respect of anti-social behaviour

shall not be the subject of an application for an order under section 257D in relation

22. The Applicant has submitted that the Programme Director appears to be applying a

blanket policy to exclude any one over the age of eighteen years from the Programme.

This approach is said to involve an incorrect interpretation of section 23 of the Children

23. The Applicant has exhibited the 2017 Annual Report of the Committee Appointed to

Monitor the Effectiveness of the Diversion Programme (“the Section 44 Monitoring

Committee Report”). The statistics in this report appear to indicate that no one over the

age of eighteen years has been admitted to the Programme. See, in particular, pages 12

24. Leading counsel on behalf of the Applicant, Mr James Dwyer, SC, submits that in the

absence of a statement of reasons, it is not possible to say to what extent the decision in

the present case was informed by this mistaken interpretation of the eligibility criteria.

25. As explained under the next heading below, however, matters moved on at the hearing in

that counsel for the Programme Director made submissions which confirmed the existence

26. During the course of the hearing before this court, a significant disagreement emerged as

between the Programme Director and the Director of Public Prosecutions as to the correct

interpretation of Part 4 of the Children Act 2001. This disagreement centres on whether

the threshold for admission to the Diversion Programme is to be determined by reference

to the age of an offender as of the date of the commission of the offence, or, alternatively

27. It may assist the reader in understanding the nature of this disagreement to pause briefly

at this point, and to set out the provisions of section 23 of the Children Act 2001 which

“23.—(1) Subject to subsection (6), a child may be admitted to the Programme if he or

(a) accepts responsibility for his or her criminal or anti-social behaviour, having

had a reasonable opportunity to consult with his or her parents or guardian

and obtained any legal advice sought by or on behalf of him or her,

(b) consents to be cautioned and, where appropriate, to be supervised by a

but paragraph (b) shall not apply where the Director is satisfied that the failure to

agree to being cautioned or supervised is attributable to undue pressure being

brought to bear on the child by any person and, in that event, the child shall be

(5) For the purposes of subsection (1)(c), the age for admission to the Programme

shall be the age of the child on the date on which the criminal or anti-social

28. The Programme Director maintains the position that once an offender has reached the

age of eighteen years, then he or she is not legally entitled to be admitted to the

Programme. (DAR, 14.30, 10 October 2019). Leading counsel on behalf of the

Programme Director, Mr Michael Durack, SC, justifies this approach by pointing out that

all of the provisions in respect of eligibility for the Programme relate to a “child”, and that

the definition of a “child” is someone who is under eighteen years of age. The Applicant

had reached the age of eighteen years shortly after he was first questioned in relation to

29. Counsel further submits that the only point when the date of offence is mentioned is

under subsection 23(5). That subsection, it is said, deals with the position where undue

pressure is being brought to bear on the child by any person. It is only in those

circumstances that the date of commission of offence then becomes the operative date.

(It appears from this submission that the paragraph under subsections (a), (b) and (c) is

30. Counsel on behalf of the Programme Director has informed the court that, in considering

his admission to the Programme, the Programme Director was affording the Applicant a

concession which does not appear to be provided for under a strict construction of the

31. The Director of Public Prosecutions, through her counsel, Ms Sunniva McDonagh, SC,

submits that this interpretation of the legislation is incorrect. A similar submission is

made on behalf of the Applicant by his counsel, Mr James Dwyer, SC.

32. I am satisfied that the interpretation put forward by the Director of Public Prosecutions

and the Applicant is correct. The qualifying age for admission to the Diversion

Programme is to be determined by reference to the age of an offender as of the date of

the commission of the offence. The Programme Director’s interpretation is incorrect, and

involves a misreading of the distinct provisions addressing the contingency of a child

being subject to undue pressure. The language of section 23 is clear, and there is an

express link between subsections (1)(c) and (5) (set out above). The age for admission

to the Programme is the age of the child on the date on which the criminal or anti-social

33. The two principal issues which fall for determination in these proceedings are as follows.

First, 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 Director of Public

Prosecutions. Secondly, in the event that the attenuated standard of review does apply,

it will then be necessary to consider whether intervention by the court by reference to this

34. Before turning to address these two issues, it may assist in setting the context to explain

briefly the current legal requirements in relation to the duty to give reasons. These are

set out, primarily, in the judgment of the Supreme Court in Mallak v. Minister for Justice

35. The judgment locates the source of a duty to give reasons as lying within the general

“[54] The general principles of natural and constitutional justice comprise a number of

individual aspects of the protection of due process. The obligation to give fair

notice and, possibly, to provide access to information or, in some cases, to have a

hearing are intimately interrelated and the obligation to give reasons is sometimes

merely one part of the process. The overarching principle is that persons affected

by administrative decisions should have access to justice, that they should have the

right to seek the protection of the courts in order to see that the rule of law has

been observed, that fair procedures have been applied and that their rights are not

36. The judgment, at a later point, summarises the present state of the law as follows.

“[68] In the present state of evolution of our law, it is not easy to conceive of a decision

maker being dispensed from giving an explanation either of the decision or of the

decision making process at some stage. The most obvious means of achieving

fairness is for reasons to accompany the decision. However, it is not a matter of

complying with a formal rule: the underlying objective is the attainment of fairness

in the process. If the process is fair, open and transparent and the affected person

has been enabled to respond to the concerns of the decision maker, there may be

situations where the reasons for the decision are obvious and that effective judicial

[69] Several converging legal sources strongly suggest an emerging commonly held

view that persons affected by administrative decisions have a right to know the

37. As appears from these passages, one of the principal determinants of whether a particular

individual is entitled to a statement of reasons in respect of an administrative decision is

whether that individual can be said to be a person affected by the decision. The

individual does not necessarily have to establish that the decision has interfered with a

“right” of theirs before they are entitled to reasons. It may be sufficient to trigger a duty

to give reasons that the individual has an interest in ensuring that the decision had been

38. It is well established that a decision on the part of the Director of Public Prosecutions not

to prosecute is subject to an attenuated form of judicial review. Whereas the case law

stops short of conferring an immunity from judicial review, the threshold before a court

will intervene is very high. An applicant who seeks to challenge a decision of the Director

of Public Prosecutions must, in effect, establish that the impugned decision had been

reached mala fide or had been influenced by an improper motive or improper policy.

39. Leading counsel on behalf of the Programme Director, Mr Michael Durack, SC, submits

that the decision not to admit an individual to the Diversion Programme is analogous to a

decision by the Director of Public Prosecutions not to prosecute. Much reliance is placed

upon the judgment of the High Court (Hedigan J.) in Kelly v. Director of Public

Prosecutions [2009] IEHC 200, which, in turn, cited the judgment of the Supreme Court

in Dunphy (A Minor) v. Director of Public Prosecutions [2005] 3 IR 585.

40. In order to assess the correctness of this submission, it is necessary first to examine the

case law in relation to the Director of Public Prosecutions with a view to identifying the

rationale underlying the application of an attenuated standard of judicial review to the

DPP. Thereafter, it will be necessary to consider whether a similar rationale can be said

41. The starting point for this exercise is the judgment of the Supreme Court in State

(McCormack) v. Curran [1987] I.L.R.M. 225. The applicant in McCormack had been

accused of an offence which had been committed in Northern Ireland. The Criminal Law

(Jurisdiction) Act 1976 allowed for the possibility of an offence committed in Northern

Ireland being prosecuted within the State. For this to happen, the Director of Public

Prosecutions would have to issue a warrant for the arrest of the person charged in

Northern Ireland, with a view to their being prosecuted within the State for an extra-

territorial offence as defined. The Director had, however, declined to prosecute the

42. One of the principal issues in the proceedings was whether the decision of the Director

not to prosecute the applicant was amenable to judicial review. Finlay C.J. rejected the

contention, made on behalf of the Director, that his decisions were not as a matter of

43. The judgment indicates, however, that the form of judicial review is attenuated.

“In regard to the DPP I reject also the submission that he has only got a discretion

as to whether to prosecute or not to prosecute in any particular case related

exclusively to the probative value of the evidence laid before him. Again, I am

satisfied that there are many other factors which may be appropriate and proper for

him to take into consideration. I do not consider that it would be wise or helpful to

seek to list them in any exclusive way. If, of course, it can be demonstrated that

he reaches a decision mala fide or influenced by an improper motive or improper

policy then his decision would be reviewable by a court. To that extent I reject the

contention again made on behalf of this respondent that his decisions were not as a

In the instant case, however, I am satisfied that no prima facie case of mala fides

has been made out against either of the respondents with regard to this matter.

Secondly, I am satisfied that the facts appearing from the affidavit and documents

do not exclude the reasonable possibility of a proper and valid decision by the DPP

not to prosecute the appellant within this jurisdiction and that that being so he

cannot be called upon to explain his decision or to give the reasons for it nor the

44. As appears, the threshold for review is whether the decision can be demonstrated to have

been reached mala fides or had been influenced by an improper motive or policy.

45. The principles in State (McCormack) v. Curran were considered in detail by the Supreme

Court in H. v. Director of Public Prosecutions [1994] 2 I.R. 589. The applicant in that

case had sought an order of mandamus requiring the Director to prosecute an individual

in respect of alleged child sexual abuse. The Supreme Court refused to grant an order of

mandamus. O’Flaherty J. stated that if the Director were to be subjected to frequent

applications by discomfited persons for mandamus to compel him to bring prosecutions,

his office would be stretched beyond endurance in seeking to justify that which should not

require to be justified. The Supreme Court fully endorsed the approach in McCormack.

46. Before leaving H. v. Director of Public Prosecutions, it is instructive to consider the

arguments which had been advanced in justification of the attenuated standard of judicial

review. Counsel on behalf of the Director had submitted that there will often be good and

cogent reasons why the Director of Public Prosecutions should decide not to prosecute

and where it would be inappropriate that his reasons should be brought into the public

arena. Counsel had instanced examples such as where, though there might be a strong

suspicion of guilt on the part of an accused, the proof of guilt would simply not be

forthcoming. It would be very wrong for the Director to make a statement to the effect

that while he suspected someone was guilty of an offence he could not hope to sustain a

conviction. Counsel also cited the need to protect confidential informants.

47. The principles governing judicial review of a decision of the Director of Public Prosecutions

were again considered in the more recent judgment in Eviston v. Director of Public

Prosecutions [2002] 3 IR 260. This case involved a challenge to a decision to prosecute.

On the facts of that case, the Director, having originally stated that he would not

prosecute the applicant for an offence, made a subsequent decision to prosecute. The

Supreme Court, per Keane C.J., explained the effect of the earlier case law as follows.

“It is an important feature of the decisions in the State (McCormack) v. Curran

[1987] I.L.R.M. 225 and H. v. Director of Public Prosecutions [1994] 2 I.R. 589

that, in each case, the court was concerned with (a) a decision not to prosecute in a

particular case and (b) a challenge to the merits of that decision. The decisions,

accordingly, go no further than saying that the courts will not interfere with the

(a) no prima facie case of mala fides has been made out against the respondent;

(b) there is no evidence from which it could be inferred that he has abdicated his

valid decision of the respondent not to prosecute the person concerned.

They also make it clear that, in such circumstances, the respondent cannot be

called upon to explain his decision or to give the reasons for it or the sources of the

48. All parties at the hearing before me placed emphasis on the judgment of the Supreme

Court in Murphy v. Ireland [2014] IESC 19; [2014] 1 IR 198. This judgment was

concerned with a different type of decision made by the Director of Public Prosecutions,

namely the statutory decision to certify that charges should be tried in the Special

Criminal Court. The Director must certify that the ordinary courts are, in her opinion,

inadequate to secure the effective administration of justice and the preservation of public

peace and order in relation to the trial of such person on such charge.

49. The Supreme Court, per O’Donnell J., held that there was a (limited) obligation on the

“[43] Where the Director is making a decision that is subject to only limited review by a

court and has the result that a trial which would otherwise take place before a jury

would be heard without a jury, then the Director is under a duty to give reasons for

that decision which extends to why he or she considers that the ordinary courts are

not suitable for a trial of this accused. As indicated in Mallak v. Minister for Justice

[2012] IESC 59, [2012] 3 IR 297, in an appropriate case, it may be sufficient to

state that no reason can be given, without impairing national security. A statement

of reasons that the Director believes the accused to be a member of, or associated

with, an organisation that is prepared to interfere with the administration of justice,

or even justifying the non-delivery of such reasons, will be sufficient, unless the

accused challenges the decision and provides sufficient information to the court, to

presumptively undermine the Director's reasons. As, for example occurred in The

State (Lynch) v. Cooney [1982] I.R. 337, it may be permissible, at that stage, for

the Director to amplify and explain any reasons, if thought desirable. It follows,

however, that the entitlement to obtain such reasons does not carry with it any

right contended for by the plaintiff to obtain the gist of information grounding such

a decision or to have a hearing or to make submissions before a decision is made.

The facts and argument in a case such as this lie in a fairly narrow compass. The

question, in any case, is whether the Director was entitled to consider that the

ordinary courts were inadequate to secure the administration of justice in a

particular case. Review of such a decision should be the exception and never the

routine, and only when an accused person can put forward a substantial case that

the decision making process has miscarried. The legal position outlined above

balances the desirability of reasoned decision making to strengthen the

administration of justice with the necessity to ensure that the process is tightly

controlled to avoid routine disclosure and review, which could undermine it.”

50. As appears from the above, the obligation to state reasons derives from the legal effect of

a decision to certify, namely that the accused will not be entitled to a jury trial, and from

the fact that the Director’s decision is not subject to appeal or review. This is

distinguished from other types of decision made by the Director, such as, for example,

the decision that an offence should be tried before the District Court.

51. At an earlier point, the judgment in Murphy v. Ireland endorses the correctness of the line

“In the light of subsequent decisions of this court quashing decisions of the

Director, it is necessary to qualify that statement so as to provide that a decision of

the Director is reviewable if it can be demonstrated that it was reached mala fides

or influenced by improper motive or improper policy, or other exceptional

circumstances. However, as so qualified, the decision in The State (McCormack) v.

Curran [1987] I.L.R.M. 225 has remained the law. In H. v. Director of Public

Prosecutions [1994] 2 I.R. 589, the High Court held that, while the Director could

not, in general, be compelled to explain or give reasons, such an obligation could

arise once a decision was challenged. The High Court relied on the decision in

International Fishing Vessels Ltd. v. Minister for the Marine [1989] I.R. 149 which is

one of the foundation cases on the domestic law of the duty to give reasons.

However, the Supreme Court unanimously overturned this decision. O'Flaherty J.

upheld the submission that the Director was not obliged to give reasons. He

particularly distinguished International Fishing Vessels Ltd. v. Minister for the

Marine because of the limited scope of reviewability of the Director's decisions, at p.

‘Thus, Blayney J. [in International Fishing Vessels Ltd. v. Minister for the

Marine] starts from the premise that the decision of the Minister is open to

full judicial review. However, it is clear from the decision in The State

(McCormack) v Curran [1987] I.L.R.M. 225 that the discretion of the Director

of Public Prosecutions is reviewable only in certain circumstances as set out

It would seem then that as the duty to give reasons stems from a need to

facilitate full judicial review, the limited intervention available in the context

of the decisions of the Director obviates the necessity to disclose reasons.’

Denham J., at p. 606, held that since the facts did not exclude the reasonable

possibility of a proper and valid decision then, citing The State (McCormack) v.

Curran [1987] I.L.R.M. 225 at p. 237, the Director ‘cannot be called upon to explain

his decision or to give reasons for it nor the sources of the information upon which

52. The most recent judgment of the Supreme Court on the approach to be taken to decisions

by the Director of Public Prosecutions appears to be Marques v Minister for Justice and

Equality [2019] IESC 16. Those proceedings involved a challenge to the exercise of the

Minister’s discretion in extradition matters. Extradition may be refused by the Minister for

an offence, which is also an offence under the law of the State, if the Director of Public

Prosecutions or the Attorney General has decided either not to institute proceedings or to

terminate proceedings against the person claimed in respect of the offence. On the facts,

the extradition of the applicant had been sought by the United States of America in

respect of his alleged involvement in offences related to the distribution of pornographic

images of children. The Director of Public Prosecution, knowing of the extradition

request, had declined to prosecute the applicant within this jurisdiction. The applicant

sought to challenge the failure of the Minister to exercise their discretion to decline to

extradite. It was argued that, in the absence of a statement of reasons by the Director as

to why she had decided not to prosecute the applicant, the Minister could not properly

exercise their residual discretion under section 15(2) of the Extradition Act 1965.

53. The Supreme Court ruled against the applicant on the basis that the final political decision

as to whether to accede to or to refuse an extradition resides with the Minister alone. The

Minister’s decision need not be informed by the Director’s decision not to prosecute the

offence locally. The Minister’s decision has nothing to do with whether the prosecuting

authorities thought that, for instance, the offence was more closely connected to the

requesting country, or whether the evidence was likely to be excluded under Ireland’s

54. For present purposes, the relevant aspect of the judgment is its endorsement of the

general principle that the Director of Public Prosecutions is not obliged to give reasons for

a decision as to whether to prosecute or not. The Supreme Court in Marques cited with

approval the following passage from Monaghan v. Director of Public Prosecutions

“In fulfilling his function, the Director of Public Prosecution is not to be obliged to

give reasons for his decision as to whether to prosecute or not unless it can be

demonstrated that such a decision was made in bad faith or under the influence of

an improper motive or policy; The State (McCormack) v. Curran [1987] I.L.R.M.

225. Partly, the reasoning behind the series of decisions which later upheld that

principle may be based on public policy in the sense that for reasons to be given as

to why a prosecution should not be initiated, for instance due to lack of evidence, or

the loss of evidence, such a declaration might undermine the presumption of

innocence in favour of the accused. In addition, an extra administrative burden

might be unjustifiably thrust upon the office of The Director of Public Prosecutions

in explaining, and then defending, every decision made pursuant to the powers

vested in the office by the Prosecution of Offences Act. Once there is a reasonable

possibility that a valid decision has been made by the Director not to prosecute, or

to prosecute, a decision by the Director is not reviewable by the High Court; H v.

D.P.P. [1994] 2 I.L.R.M. 285. The Director is not exempt from the general

constitutional requirements of fairness and fair procedures. The proof of the

absence of such principles in any decision made by the Director of Public

Prosecutions cannot be gathered through a speculative application for discovery;

Dunphy (a minor) v. D.P.P. [2005] IESC 75. There must be, at the least,

evidence suggestive of an impropriety before the court would allow a proceeding for

discovery to be initiated against the Director of Public Prosecutions.”

55. As appears from the foregoing survey of the case law, it remains the position that

decisions of the Director of Public Prosecutions are still subject to an attenuated form of

judicial review. One consequence of this is that the obligation upon the DPP to state

reasons is correspondingly limited. The Director has not, however, escaped entirely the

56. The attenuated form of judicial review can be justified on a number of grounds. First, the

Director exercises a very broad discretion in making decisions on whether or not to

prosecute in any particular case. The legislation which establishes the office of Director of

Public Prosecutions, namely the Prosecution of Offences Act 1974, is not prescriptive as to

the criteria to which the Director must have regard in making decisions. The exercise of

such a broad discretion does not readily lend itself to control by the courts. A decision on

whether or not to prosecute may have been informed by a number of factors, such as the

strength of the evidence, the public interest in the prosecution, the seriousness of the

alleged offence or the need to prioritise finite financial resources. Such matters fall

towards the policy end of the spectrum of decision-making, and the courts would normally

57. Secondly, were the High Court, in the exercise of its supervisory jurisdiction, to be too

willing to engage with the “merits” of a positive decision to prosecute an individual, it

might inadvertently trespass on the role of the criminal courts. If, for example, a decision

to prosecute was being challenged on the basis that there was insufficient evidence to

justify the prosecution, the High Court might be invited to rule on matters relating to,

say, the admissibility or strength of evidence. It is arguable that such matters are best

58. Thirdly, the imposition of an obligation on the Director to justify her decisions would

impose an excessive or disproportionate administrative burden on her office.

59. The sensitive nature of the decision-making also militates against the imposition of a duty

to give reasons. This is especially so in the case of a decision not to prosecute. The

disclosure of reasons for such a decision to a third party, i.e. a person other than the

alleged offender, might adversely affect the first person’s right to a good name. To take

one obvious example: if a decision not to prosecute had been informed by concerns as to

the quality of the evidence available, this might lead to an inference that the individual

involved was, in truth, guilty and that a prosecution had not been brought merely for

60. Equally, a decision not to prosecute might involve the implication that the victim would

not be a credible witness. The publication or disclosure of such observations on the part

of the Director would, self-evidently, be harmful to the reputation and good name of

61. Similar concerns have been articulated, more eloquently, by the High Court (Hogan J.) in

Flynn v. Medical Council [2012] IEHC 477; [2012] 3 I.R. 236, [27] and [28].

“There is no doubt but that the issue as to whether a prosecutor or other statutory

personage is required to give reasons for their failure to take either a criminal

prosecution or regulatory action is a vexed and troubling one. This is especially

true in relation to criminal prosecutions where it is generally thought indecorous for

a prosecutor to have to give reasons - certainly detailed reasons - for failing to

prosecute a particular case. If, for example, the Director of Public Prosecutions was

required to give detailed reasons for such a decision, it might be damning of a

particular accused while providing cogent reasons for not acting. The Director

might, for example, think that the evidence was strongly suggestive of guilt, yet

decline to prosecute because of concerns regarding the reliability of a particular

Few accused persons placed in that situation would view this state of affairs with

equanimity and, hence, for these practical and pragmatic reasons the courts have

been reluctant to impose such a requirement on the prosecuting authorities. This is

why the Supreme Court concluded in The State (McCormack) v. Curran

[1987] I.L.R.M. 225, at p. 237, that it would only be appropriate for a court to intervene by

way of judicial review of a decision not to prosecute where such decision was taken

‘mala fide or influenced by an improper motive or improper policy’. This approach

has been consistently followed ever since in the context of criminal prosecutions:

see, e.g., H. v. Director of Public Prosecutions [1994] 2 I.R. 589 and, in the context

of criminal investigations, Fowley v. Conroy [2005] IEHC 269, [2005] 3 IR 480.”

63. The principal question for determination in these proceedings is whether the same

rationale extends to a decision on the part of the Programme Director not to admit a

juvenile offender to the Diversion Programme. It is submitted on behalf of the two

respondents that the question of the applicability of the attenuated standard of review to

the Programme Director has been concluded by the judgment of the High Court (Hedigan

J.) in Kelly v. Director of Public Prosecutions [2009] IEHC 200 (“Kelly”), and that this

64. The judgment in Kelly was delivered in respect of two related judicial review proceedings.

The two respective applicants had been charged with offences under the Non-Fatal

Offences against the Person Act 1997 and the Criminal Justice (Public Order) Act 1994.

The charges related to an incident in which two Polish nationals had been attacked by a

number of youths. The victims had received stab wounds, and one required emergency

65. The two applicants had been interviewed subsequently by a Garda Juvenile Liaison Officer

(“the JLO”) with a view to her preparing a report as to their suitability for admission to

the Diversion Programme. The JLO had sworn an affidavit in each of the two judicial

review proceedings explaining the reasons why she had recommended that the applicants

were not suitable for inclusion in the Programme. The content of these affidavits is

“While the applicant’s [sic] were being considered for admission into the

Programme, the Garda investigation into the alleged offences of the 10th of

February 2007 was continuing. On the 2nd of April 2007, a medical report on the

injured parties was sought on behalf of the Director of the Programme. The

investigation ultimately concluded on the 11th of April 2007 and on the same day,

Garda Gralton submitted her reports to the Director of the Programme. In both

cases, Garda Gralton concluded that the offences alleged were of a very serious

nature, involving two separate attacks on foreign nationals who received very

significant injuries. She was also of the opinion that there had been a racial

undertone to the attacks. In the case of the first named applicant, Garda Gralton

noted additionally that he had declined to make a full admission of the offences. In

the case of the second named applicant, Garda Gralton made reference to the fact

that he had previously been directed to the Programme on a number of occasions.

On the basis of all of these factors, Garda Gralton concluded that neither applicant

66. The judgment goes on to explain at paragraph [13] that the (then) Programme Director’s

decision not to admit the applicants to the Programme had been predicated in each case

on the JLO’s report; the juvenile referral form prepared in respect of the applicant; and

67. The matter is put as follows at paragraph [32] of the judgment.

In the present case, the Director accepted the view of Garda Gralton that the

offences alleged were of such a serious nature, and occurred in such aggravating

circumstances, as to render the perpetrators unsuitable for admission to the

Programme. Furthermore, I am satisfied that the Director was entitled to take

account of the fact that the second named applicant had benefited from the scheme

on several previous occasions. This is also clear from the Dunphy decision. In that

‘It is… true that the fact that a juvenile has had the benefit of the scheme on

one occasion is a proper matter to be taken into account when considering

whether she should have the benefit of the scheme again… There is clearly

scope for the view that the applicant should not again be given the benefit of

the diversion scheme, either on the basis that she had not profited from her

previous experience of the scheme, or on the basis that the vindication of the

law in the fraught matter of unlawful drugs required that a person who had

not taken a previous opportunity offered by the Diversion Scheme should not

be given the benefit of it on another occasion, or indeed for a combination of

I am therefore unable to accept that there was any violation of the provisions of the

2001 Act in the present case which would impel the Court to grant the relief

68. The grounds of challenge advanced in Kelly were more wide-ranging than in the present

case. In particular, the applicants had argued that they should have been afforded the

right to make representations before the report of the JLO had been finalised and

submitted to the Programme Director. It had been further argued that the applicants

ought to have been permitted to make representations before the Programme Director

made his ultimate decision, and that the Programme Director should have provided

69. As appears from the passages of the judgment in Kelly cited above, the rationale for

refusing to admit the two applicants into the Diversion Programme had been disclosed as

part of the affidavits filed in the judicial review proceedings by An Garda Síochána. In

particular, the applicants were made aware that the decision was informed by

considerations such as the serious nature and aggravating circumstances of the offences;

the racial undertone of the offences; the failure of the first applicant to make a full

admission to the offences; and the fact that the second applicant had benefited from the

70. The High Court appears to have accepted that these considerations were all matters

which the Programme Director could lawfully take into account in the exercise of his

71. Hedigan J., at paragraph [31] of the judgment, drew an analogy between the discretion

exercised by the Programme Director under section 23(2) of the Children Act 2001, and

“31. It is quite clear that under section 23(2) of the 2001 Act, the Director is required to

assess any candidacy for the Programme in a manner which achieves a balance

between the best interests of the particular candidate and those of any victims as

well as society as a whole. This accords with the generally wide discretion which is

afforded to prosecuting authorities when deciding whether to bring criminal

proceedings against a particular individual. In Eviston v. Director of Public

Prosecutions [2002] 3 IR 260, Keane J. examined the authorities on this point and

‘It is an important feature of the decisions… that, in each case, the court was

concerned with (a) a decision not to prosecute in a particular case and (b) a

challenge to the merits of that decision. The decisions, accordingly, go no

further than saying that the courts will not interfere with the decision of the

(a) no prima facie case of mala fides has been made out against the

(b) there is no evidence from which it could be inferred that he has

The application of these principles to decisions made under the Programme, albeit

in its previous non-statutory incarnation, was affirmed by Hardiman J. in Dunphy (A

Minor) v. Director of Public Prosecutions [2005] 3 IR 585. I am satisfied that they

72. The judgment goes on to state at paragraph [34] that it is well established that executive

decisions made at the outset of a prosecution for a criminal offence are not reviewable

save in the most exceptional circumstances. At paragraphs [37] and [38], it is stated

that any obligation on the part of the Programme Director to provide a reasoned decision

is “heavily restricted” by the nature of the decision being made by the Director. The court

concluded by rejecting the argument that the Director had any obligation to inform the

73. Having carefully considered the judgment in Kelly, it does not appear to me to be

conclusive of the issues which fall for determination in the present case. One of the

central issues to be determined is how the principles in the landmark judgment in Mallak

apply to a decision not to admit an offender to the Diversion Programme. The judgment

in Kelly had been delivered several years prior to Mallak, and, thus, by definition, could

74. Moreover, there does not appear to be any reference in the summary of the submissions

of the parties, as set out in the Kelly judgment, to the legal implications flowing from the

fact that the previous non-statutory scheme operated by the Director of Public

Prosecutions has now been put on a statutory basis. Nor is there any reference to the

fact that the decision on whether or not to admit an offender to the Diversion Programme

is now a function of An Garda Síochána, and not of the Director of Public Prosecutions.

These issues do not appear to have been argued before the High Court in Kelly. A point

75. Finally, as the passages from Kelly set out above indicate, the reasons for non-admission

of the applicants to the Programme had been disclosed in the affidavits filed in the judicial

review proceedings. In a sense, therefore, the argument as to whether the Programme

Director was obliged to give reasons had become academic. The applicants were fully

76. For the sake of completeness, it should be noted that the same type of grounds which

justify distinguishing Kelly apply with even greater force to the judgment of the Supreme

Court in Dunphy (A Minor) v. Director of Public Prosecutions [2005] 3 IR 585.

77. The offences at issue in that case had occurred prior to the commencement of Part 4 of

the Children Act 2001. The applicants were relying instead on the non-statutory scheme

which was administered primarily by the Director of Public Prosecutions. The points of

distinction made above as to the differences between the statutory and the non-statutory

78. The Supreme Court, per Hardiman J., applied the attenuated standard of review to the

decision to deny one of the two offenders the benefit of the non-statutory scheme. The

Supreme Court held that the alleged disparity in treatment was capable of justification on

the ground that the excluded offender had previously had the benefit of a caution in

respect of an earlier offence. See paragraphs [36] and [37] of the judgment as follows.

“That is undoubtedly true. It is equally true that the fact that a juvenile has had

the benefit of the scheme on one occasion is a proper matter to be taken into

account when considering whether she should have the benefit of the scheme

again. There is no suggestion that the other girl had any previous involvement in

the scheme, or any previous convictions. There is clearly scope for the view that

the applicant should not again be given the benefit of the diversion scheme, either

on the basis that she had not profited from her previous experience of the scheme,

or on the basis that the vindication of the law in the fraught matter of unlawful

drugs required that a person who had not taken a previous opportunity offered by

the diversion scheme should not be given the benefit of it on another occasion, or

indeed for a combination of these views. Having regard to the fact that it is for the

applicant to demonstrate that the facts "exclude the reasonable possibility of a

proper and valid decision by the [respondent]" it is unnecessary to make further

findings. There is clearly scope for the view that the decision to divert the other girl

involved into the juvenile liaison scheme, and the respondent's decision to

prosecute the applicant, are each quite consistent with total propriety in the

This being so, I believe that the applicant has made no showing at all towards

discharging the burden that indisputably lies on her, even in a suggestive or prima

79. The applicant in Dunphy was thus aware of the reasons for her exclusion from the non-

80. The principal features of the Diversion Programme have been set out, in summary form,

at paragraphs 17 et seq. above. The legal status and statutory functions of the

Programme Director are so very different from those of the Director of Public Prosecutions

as to make it inappropriate to treat the former as being subject to the same attenuated

form of judicial review as the latter. This conclusion is premised on the following

81. First, the decision as to whether or not to admit an offender to the Programme resides

exclusively with An Garda Síochána. The Garda Commissioner is required to assign an

officer, not below the rank of superintendent, with the function of Director of the

Diversion Programme. It is the “function” of the Programme Director to decide whether

to admit a child to the Programme. (Section 24(1)). The Director of Public Prosecutions

is bound by the decision of the Programme Director. This is because the making of a

decision by the Programme Director to admit an offender to the Programme bars any

prosecution for the criminal behaviour, or any related behaviour, in respect of which he or

82. In the absence of any regulations having been made under section 47, the Director of

Public Prosecutions no longer has any role in relation to the threshold decision as to

whether to admit an offender to the Programme. This is to be contrasted with the

position in respect of the previous non-statutory scheme as described in the judgment in

Dunphy (A Minor) v. Director of Public Prosecutions (at paragraphs [32] to [34] of the

83. Put shortly, admission to the Programme does not come within the umbrella of the

Director of Public Prosecution’s decision-making. If an attenuated form of review is to

apply, then it must be justified by the nature of the Programme Director’s function.

84. This leads on to the second point. The Oireachtas has made a policy choice to divert

certain juvenile offenders from the criminal justice system. The Programme Director is

the person designated to give effect to this legislative intent. The decision as to whether

or not to admit any individual offender to the Programme must be made by reference to

the statutory criteria prescribed. Whereas Part 4 of the Children Act 2001 does

undoubtedly confer a margin of discretion on the Programme Director, this discretion is

constrained and he must observe the statutory criteria. The Programme Director is in a

very different position than the Director of Public Prosecutions. The latter is entirely

independent in the exercise of her functions, and the Prosecution of Offences Act 1974 is

not prescriptive as to the criteria to which the Director must have regard in reaching

85. It would risk undermining the legislative intent underlying Part 4 of the Children Act 2001

were the Programme Director to be accorded the benefit of the same attenuated form of

judicial review as the DPP. To do so would mean that there was no effective procedure in

place by which non-observance of the statutory criteria could be corrected.

86. Thirdly, there are certain conditions precedent to the making of a decision to admit a

juvenile offender to the Programme. It is only where these have been fulfilled that the

statutory discretion comes into play. Relevantly, the offender must have been under

eighteen years of age at the time the offence occurred. If the Programme Director were

to have misinterpreted or misunderstood the statutory qualifying criteria, then this would

represent an error of law on his part. This error would be amenable to correction by way

87. Fourthly, a further consequence of the fact that the range of considerations to be taken

into account by the Programme Director is narrower is that the imposition of a

requirement to state reasons would not present the same sensitivities as in the case of

the Director of Public Prosecutions. By definition, a decision on admission to the

Programme only properly arises for consideration where the offender has accepted

responsibility for his or her criminal or anti-social behaviour. Thus, the type of difficult

issues in relation to evidence and proof which often arise for consideration by the Director

of Public Prosecutions will not have to be considered by the Programme Director. It

should also be borne in mind that there are express statutory provisions which render

inadmissible evidence obtained in the course of the consideration of admission to the

88. Moreover, any duty to state reasons can properly be confined to the giving of reasons to a

juvenile offender who seeks admission to the Programme. There would be no obligation

to provide reasons to third parties. Accordingly, the type of concerns identified at

89. Having regard to all of these considerations and, in particular, to the fact that the decision

to admit an offender to the Programme must be made in accordance with prescribed

statutory criteria and that the Director of Public Prosecutions has no function in this

regard, the decisions of the Programme Director do not attract the same standard of

attenuated judicial review as is applicable to the Director of Public Prosecutions. This

does not mean, of course, that it is “open season” in respect of decisions made under Part

4 of the Children Act 2001. The Programme Director, as with any other public authority

charged with the exercise of a statutory discretion, is entitled to curial deference. 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 [1993] 1 I.R. 39, and Meadows v.

Minister for Justice and Equality [2010] IESC 3; [2010] 2 IR 701. An applicant for

judicial review will have to hurdle this very high threshold before he or she could succeed

90. It follows as a consequence of this finding that his decisions are amenable to judicial

review that the Programme Director is, in principle, required to provide reasons, if

requested, to a juvenile offender who has been refused access to the Programme.

Whereas a juvenile offender does not have a “right” to be admitted to the Programme,

they do have an obvious interest in ensuring that the decision has been reached in

accordance with the relevant statutory provisions. See, by analogy, Mallak v. Minister for

91. The reasons can be stated in short form, and there is no obligation on the Programme

Director to provide a discursive explanation. In the unlikely event that the statement of

reasons would involve the disclosure of sensitive material, then the Programme Director

92. An example of the type of reasons which would pass muster is provided by the facts of

Kelly v. Director of Public Prosecutions (discussed earlier). On the facts of that case, the

decision not to admit the two applicants to the Programme had been informed by the

serious nature and aggravating circumstances of the offences; the racial undertone of the

offences; the failure of the first applicant to make a full admission to the offences; and

the fact that the second applicant had benefited from the Programme on several previous

occasions. A short statement along these lines would fully discharge the duty to give

reasons. Moreover, it would not involve the disclosure of any sensitive information.

93. Returning to the facts of the present case, the Programme Director has declined to

provide any reasons whatsoever for his decision not to admit the Applicant to the

Programme. The Applicant is entitled to reasons, or, at the very least, to an explanation

as to the basis on which the Programme Director purports to withhold reasons. The

Applicant is, therefore, entitled to an order setting aside the decision and directing that

the matter be reconsidered in light of the findings of the court. I discuss the precise form

94. For the reasons set out under the previous heading, I have concluded that decisions made

by the Programme Director pursuant to Part 4 of the Children Act 2001 do not attract the

attenuated standard of review applicable to decisions of the Director of Public

95. Lest I be incorrect in this finding, I propose to consider, separately, the question of

whether the circumstances of the present case would justify intervention even on the

96. The case law discussed earlier emphasises that even the decisions of the Director of

Public Prosecutions are not entirely immune from judicial review. Rather, an applicant

who seeks to challenge such a decision must demonstrate that there is, for example,

evidence from which it can be inferred that the DPP’s decision has been influenced by an

97. On the facts of the present case, the material before the court establishes that there is a

prima facie case for saying that the Programme Director’s decision may have been

informed by a mistaken interpretation of the eligibility criteria governing admission to the

Programme. More specifically, as the disagreement between the two State respondents

illustrates, the Programme Director appears to have been labouring under a

misapprehension that an offender who has reached the age of eighteen years is ineligible

for admission to the Programme. Certainly, the language used in the correspondence, i.e.

the Applicant’s “referral does not fulfil the criteria for inclusion in the Garda Diversion

Programme”, suggests that the decision may well have been grounded on the fact that

98. It has been suggested in oral submissions before this court that the possibility of

admission to the Programme may have been extended to the Applicant on a

concessionary basis. There is, however, no affidavit evidence to this effect before the

99. If the impugned decision not to admit the Applicant to the Programme was, indeed,

reached on this mistaken interpretation of the legislation, then this would represent a

good ground for setting aside the decision even on the attenuated standard of judicial

review. A decision-maker must ask himself the correct question, and the

misinterpretation of a condition precedent to the exercise of a statutory discretion would

render the decision invalid. See, by analogy, White v. Dublin City Council [2004] IESC

100. The respective counsel acting on behalf of the Programme Director and the Director of

Public Prosecutions both, very properly, conceded that it was not possible to tell from the

decision (and subsequent correspondence from the Programme Director) whether he was,

indeed, guilty of this misinterpretation. The decision-making is inscrutable. The refusal

of the Programme Director to provide reasons in the particular circumstances of this case

frustrates the High Court’s supervisory jurisdiction by way of judicial review. To permit

the Programme Director to maintain this 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.

101. In order to be eligible for consideration for admission to the Programme, it is necessary

for an offender to accept responsibility for his or her criminal or anti-social behaviour. In

the event that the offender is not admitted to the Programme, this acceptance or

admission cannot be relied upon in evidence at a subsequent criminal trial. (Section 48).

102. In the ordinary course of events, the making of such admissions would only be known to

the offender, his or her legal team and the relevant gardaí. The admissions would not

103. The Applicant in the present case finds himself in a very different position. The fact of his

having made a series of admissions of criminal wrongdoing has been disclosed as part of

these judicial review proceedings. It would undermine the statutory prohibition on the

use of such admissions at a subsequent criminal trial if the fact that the Applicant had

made these admissions were to be published as part of the reporting of these judicial

review proceedings. If, for example, the Applicant’s name and the details of the case

(including his admissions) were to be published, then there is a real risk that this might

come to the attention of members of a jury in any subsequent criminal proceedings. This

104. To mitigate this risk, it seems sensible that restrictions should be imposed on the

reporting of the judicial review proceedings. For this reason, I made an order at the

outset of the proceedings prohibiting the publication of any material which is capable of

allowing the Applicant to be identified. This order continues in force.

105. For similar reasons, the precise details of the alleged offences have been omitted from

106. All parties were agreed, in principle, that reporting restrictions should be imposed on

these proceedings. The parties are not, however, agreed as to the jurisdictional basis for

such reporting restrictions. The Applicant seeks to rely on the provisions of section 45 of

the Courts (Supplemental Provisions) Act 1961, saying that these judicial review

proceedings fall within the definition of a “minor matter”. The judgment of the High Court

(Humphreys J.) in McD. v. Director of Public Prosecutions [2016] IEHC 210 is cited in

107. The State respondents, conversely, rely on the court’s inherent jurisdiction to protect the

integrity of the trial of the criminal charges currently pending against the Applicant. The

judgments in Irish Times Ltd. v. Ireland [1993] 1 I.R. 359; Independent Newspapers

(Ireland) Ltd. v. Andersen [2006] 3 IR 341; and Doe v. Revenue Commissioners

108. For the reasons set out in L.E. v. Director of Public Prosecutions [2019] IEHC 471, [80]

and [81], I do not think that the provisions of section 45 of the Courts (Supplemental

Provisions) Act 1961 can be relied upon to impose reporting restrictions on the criminal

trial of an adult in respect of offences alleged to have been committed at a time when the

“With respect, I am not satisfied that Section 45(1) of the Courts (Supplemental

Provisions) Act 1961 can be interpreted in this way. It is well established that

statutory exceptions to the constitutional imperative that justice should be

administered in public must be strictly construed, both as to the subject matter and

the manner in which the procedures depart from the standard of a full hearing in

public. See Gilchrist v. Sunday Newspapers Ltd. [2017] IESC 18; [2017] 2 IR 284.

It seems to me that in circumstances where the Oireachtas has made express

provision under [Section 93] of the Children Act 2001 for restricting the reporting of

criminal proceedings involving offences alleged to have been committed by

children, but has omitted to extend that protection to cases where the hearing

takes place after the child has become an adult, weight should be given to this

legislative preference. It is not open to this court to sidestep this legislative

preference by calling in aid the general provisions of Section 45(1) of the Courts

(Supplemental Provisions) Act 1961. The specific circumstances in which criminal

proceedings in respect of offences alleged to have been committed by minors can

be held otherwise than in public is regulated under the Children Act 2001. There is

an obvious tension between the principle that justice be administered in public, and

a desire to shield child defendants from publicity lest it frustrate their rehabilitation

or undermine their future prospects in life. The compromise chosen by the

Oireachtas is to provide anonymity in cases where the defendant is still a ‘child’ as

defined at the time of the criminal proceedings. If the child has reached the age of

majority, then they are confined to the benefit of Section 258 of the Children Act

2001. Section 258 provides, in effect, that criminal convictions for offences

committed as a child shall be expunged after a period of three years. This is subject

to certain exceptions, e.g. it does not apply to an offence which is required to be

tried by the Central Criminal Court, or where the defendant has been dealt with

Whereas there might well be different opinions as to whether this compromise is

the most appropriate one, that is not a matter for this court. The interpretation of

[Section 93] of the Children Act 2001 is unequivocal, and the benefit of the

reporting restrictions is not available in the case of an adult defendant.”

109. The proper jurisdictional basis for the reporting restrictions is, instead, to be found under

the court’s inherent jurisdiction to protect the integrity of a criminal trial.

110. The precise form of the reporting restrictions imposed is set out below under the heading

111. A decision by the Programme Director, made pursuant to Part 4 of the Children Act 2001,

not to admit a juvenile offender to the Diversion Programme is amenable to judicial

review. Such a decision does not attract the attenuated standard of review which is

112. The Programme Director is, therefore, required to provide reasons to a juvenile offender

who has been denied access to the Programme, if requested. This follows from the

general principles set out in Mallak v. Minister for Justice and Equality [2012] IESC 59;

113. This does not mean, of course, that it is “open season” in respect of decisions made under

Part 4 of the Children Act 2001. The Programme Director, as with any other public

authority charged with the exercise of a statutory discretion, is entitled to curial

deference. 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

[1993] 1 I.R. 39, and Meadows v. Minister for Justice and Equality [2010] IESC 3; [2010] 2 I.R.

701. An applicant for judicial review will have to hurdle this very high threshold before he

or she could succeed in setting aside the decision on the merits.

114. Lest I be incorrect in the findings above, I am satisfied that even if the attenuated

standard of judicial review were applicable, the peculiar circumstances of the present case

would have triggered an obligation to state reasons. The material before the court

establishes that there is 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. More specifically, the Programme Director

appears to have been labouring under a misapprehension that an offender who has

reached the age of eighteen years is ineligible for admission to the Programme. On its

correct interpretation, section 23 of the Children Act 2001 provides that the age threshold

for admission to the Diversion Programme is to be determined by reference to the age of

115. The refusal of the Programme Director to provide reasons in the peculiar circumstances of

this case frustrates the High Court’s supervisory jurisdiction by way of judicial review. To

permit the Programme Director 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.

116. I propose to make the following orders. An order of certiorari, by way of application for

judicial review, setting aside the decisions of 30 July 2018 and 4 September 2018

refusing to admit the Applicant to the Diversion Programme. These orders reflect the

117. An order pursuant to Order 84, rule 27(4) of the Rules of the Superior Courts remitting

the matter of the Applicant’s admission to the Diversion Programme to the incumbent

Programme Director for reconsideration in light of the findings of this court as set out in

this judgment. It would not be appropriate in the circumstances of the present case

simply to direct that the decision-maker furnish reasons retrospectively. This is because

the (former) Programme Director appears to have been operating on a fundamental

misinterpretation of Part 4 of the Children Act 2001. This undermines confidence in the

earlier decision-making process. It is preferable, therefore, that the question of the

Applicant’s admission to the Programme be considered afresh, i.e. as opposed to reasons

being provided ex post facto for the original decisions of July and September 2018. The

matter is to be reconsidered by an officer other than Superintendent Colin Healy.

118. The order restraining the Director of Public Prosecutions from pursuing the prosecution of

the Applicant is to remain in force. The Director of Public Prosecutions has liberty to

apply, on seven days’ notice to the Applicant, to have this order vacated in the event that

the reconsideration of the matter does not result in a decision to admit the Applicant to

the Diversion Programme. Any such application should be made to me in the first

119. The reporting restrictions are to continue. In this regard, I will make an order that no

material is to be published which might lead to the identity of the Applicant being

disclosed. In particular, and without prejudice to the foregoing, publication of the

Applicant’s name; his date of birth; his address; and details of the school and third level

institution which he has attended is prohibited. Similar reporting restrictions apply to the

victim of the offences. No details of the alleged offences, other than the summary set out

120. I will hear counsel in relation to costs and as to the form of stay to be granted in the

event of an appeal.

Result: Application for judicial review allowed, and order for remittal made.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. v The director of the Garda Juvenile Diversion Programme & ors [2019] IEHC 796 (22 November 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_796.html Cite as: [2019] IEHC 796

High Court of Ireland Decisions