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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v P. B. (Approved) [2024] IECA 60 (19 January 2024) URL: https://www.bailii.org/ie/cases/IECA/2024/2024IECA60.html Cite as: [2024] IECA 60 |
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THE COURT OF APPEAL
Record Number: 75/2020
Neutral Citation: [2024] IECA 60
The President.
McCarthy J.
Kennedy J.
BETWEEN/
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND -
P.B.
APPLICANT
JUDGMENT of the Court delivered on the 19th day of January 2024 by Ms. Justice Isobel Kennedy.
1. The applicant pleaded guilty to murder and appealed the severity of his sentence. Judgment was delivered by this Court in People (DPP) v P.B. [2024] IECA 305. The applicant attained his majority shortly after sentence by the Central Criminal Court and therefore was over 18 years by the time his appeal came before this Court.
2. By Notice of Motion, the applicant seeks orders preserving his anonymity in the context of these proceedings pursuant to s. 93 of the Children Act, 2001 (hereafter 'the 2001 Act').
3. The facts underpinning these proceedings are outlined in the earlier judgment of this Court.
4. The relevant portion of s. 93 of the Children Act, 2001, as substituted by s.139 of the Criminal Justice Act, 2006 provides as follows:-
"93. –(1) In relation to proceedings before any court concerning a child— (a) no report which reveals the name, address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any such child shall be published or included in a broadcast or any other form of communication, and
(b) no still or moving picture of or including any such child or which is likely to lead to his or her identification shall be so published or included.
(2) [Not relevant]
(3) [Not relevant]
(4) [Not relevant]
(5) This section shall apply in relation to proceedings on appeal from a court, including proceedings by way of case stated.
(6) [Not relevant]."
Submissions
5. It is the applicant's position that the provisions of s. 93 of the 2001 Act apply to proceedings on appeal even where the child has attained his/her majority at the time of appeal.
6. It is submitted that the objectives of the 2001 Act are clear and children who come into contact with the criminal justice system should be given every reasonable opportunity to rehabilitate on the conclusion of such contact. These objectives are reflected in ss. 96, 99, 143 and 158 of the Act.
7. The applicant relies on the dicta of O'Malley J in G v DPP [2014] IEHC 33:-
"It is an acknowledgment of the fact that a child is in the process of development. It is the policy of both the legislature and the courts, therefore, to assist in that process in a positive way where practicable. The policy is one that respects both the rights of the child as an individual and the public interest in steering a child offender into a more law-abiding path.
It is for these reasons that the Children Act, 2001 provides the range of protections that it does. For example, the provisions in relation to anonymity do not just protect children, guilty or innocent, from what might for them be the intolerable burden of publicity. They also ease the process of rehabilitation in the case of a guilty child, permitting him or her to grow to adulthood without having to deal with that burden."
8. It is submitted that subsection 5 extends the prohibition on revealing the identity of a child, who is the subject of proceedings before any court to any proceedings on appeal. It is further argued that any alternative construction would not only effectively inhibit an appellant who has attained his majority in the period between conviction and appeal from exercising his constitutional right to appeal but would also discriminate between him and a child offender who might be in a position to have his appeal heard before attaining his majority.
9. It is submitted that this Court is required to interpret the section in the manner contended for by the applicant because failure to do so would amount to an infringement of Article 40.1 of the Constitution. Croke v Smith (No. 2) [1998] 1 IR 101 in relation to the double construction rule is relied upon:-
"(1) grant to the impugned provision the presumption of constitutionality unless and until the contrary is clearly established;
(2) not declare the impugned provision to be invalid where it is possible to construe it in accordance with the Constitution:
(3) favour the validity of the provision in cases of doubt; and
(4) must have regard to the fact that the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice."
10. It is the respondent's position that construed literally, s. 93 provides that only a child retains the right to anonymity. It is said that the meaning of the wording of s. 93 is clear and unambiguous and that there is not a sufficient basis to apply a purposive interpretation.
11. It is submitted that s. 93(5) as substituted by s. 139 of the Criminal Justice Act, 2006 makes it clear that the section applies to proceedings on appeal from a court. The section, as amended by the Criminal Justice Act, 2006 provides that, "this section shall apply in relation to proceedings on appeal from a court including proceedings by way of case stated", as opposed to its original promulgation of, "this section shall apply in relation to proceedings on appeal from the Court", meaning the Children's Court.
12. It is argued that s. 93 does not provide for extension of its application to persons who have reached the age of eighteen or persons whose involvement in proceedings began as a child but who have since attained majority. It is further noted that the recent Criminal Procedure (Miscellaneous Provisions) Act, 2023, which tackled certain procedural aspects relating to appeals of persons who have "aged out", is silent on the issue of anonymity.
13. The respondent contends that support for a literal interpretation may be found in DK v Director of Public Prosecutions [2023] IEHC 273 in which case Barr J referred to Independent Newspapers v IA [2018] IEHC 120 in which McDermott J stated:-
"43. While it is clear that the protection conferred by Section 93 continues for life in respect of a child who is prosecuted, convicted and sentenced under the age of eighteen, there is no specific provision extending those benefits when a child passes the threshold age limit of eighteen years in the course of the criminal proceedings."
14. The respondent submits that the facts underpinning DK can be distinguished in that DK concerned an application for judicial review on the basis of prosecutorial delay where the applicant was not charged with an alleged offence until he was 18 years old. He therefore lost the protections under the 2001 Act.
15. The respondent also seeks to distinguish the facts in Independent Newspapers where the pertinent issue concerned s. 8 of the Criminal Law (Rape) Act, 1981 and whether a person accused of sexual offending could be named post-conviction.
16. Reliance is also placed on LE v DPP [2020] IECA 101.
17. The respondent says that a literal interpretation does not negate and/or impede the right to appeal.
18. This application hinges on the interpretation of ss. 93(1) and (5) of the 2001 Act. The relevant portion of the long title to the Act states:-
"An act to make further provision in relation to the care, protection and control of children...."(our emphasis).
19. The long title sets out the scope and objectives of an act and as Dodd on Statutory Interpretation in Ireland says, "Where the context or purpose of an Act becomes relevant for interpretation, then the long title may be used to aid identification of such matters."
20. It is apparent that one of the aims of the Act is to protect children. The intention of the legislature is drawn from the language used in a statute and the first approach to statutory interpretation is to give the words their ordinary meaning, their literal meaning.
21. However, on occasion, this approach will not resolve the interpretative issue and in those circumstances, s. 5 of the Interpretation Act, 2005 provides assistance.
22. It is not for a court to modify the ordinary meaning of words but to give words their ordinary meaning in order to give effect to the intention of the legislature.
23. Finlay C.J. in McGrath v McDermott [1988] IR 258 at 276 stated the correct approach of a court in interpreting statutes with his usual admirable clarity:
"The function of the Courts in interpreting a statute of the Oireachtas is, however, strictly confined to ascertaining the true meaning of each statutory provision, resorting in cases of doubt or ambiguity to a consideration of the purpose and intention of the legislature to be inferred from other provisions of the statute involved, or even of other statutes expressed to be construed with it. The courts have not got a function to add in or delete from express statutory provisions so as to achieve the objectives which to the courts appear desirable. In rare and limited circumstances words or phrases may be implied into statutory provisions solely for the purpose of making them effective to achieve their expressly avowed objective."
24. Applying the above to s. 93(1), and adopting the literal approach, we are of the view that the section is clear and unambiguous in its language.
25. S. 3 of the 2001 Act defines the following which are important in this consideration:-
"'Court', in Parts 7 and 8, means the Children Court."
"'Child' means a person under the age of 18 years."
26. S. 93 comes within Part 8 of the 2001 Act and relates to reporting restrictions of proceedings concerning children. S. 93 of the 2001 Act was substituted by s. 139 of the Criminal Justice Act, 2006. It is helpful to look again to the words used in ss. 93(1) and (5) for the purposes of clarity. Reporting restrictions apply:-
"93(1)- In relation to proceedings before any court concerning a child"
27. The section prior to amendment read:-
"93(1) In relation to any proceedings before the Court against a child or in relation to a child under Part 9"
28. S. 93(5) now states:-
"This section shall apply in relation to proceedings on appeal from a court, including proceedings by way of case stated."
29. Prior to amendment the section read:-
"93(5) This section shall apply in relation to proceedings on appeal from the Court, including proceedings by way of case stated."
30. Prior to amendment, s. 93(1) sat comfortably with s. 93(5) in that subsection 5 related to appeals from the Children Court to the Circuit Court whereby the anonymity of children was retained and also included proceedings by way of case stated from the Children Court.
31. However, there now exists somewhat of an anomaly between s. 93(1) and (5) in circumstances where subsection 1 refers to "proceedings before any court concerning a child", which of course includes an appellate court or a court hearing a case stated and so it could be said that subsection 5 is somewhat superfluous. However, it must be presumed that the words used in a statute are there for a purpose.
32. The language used in s. 93(1) is clear and unambiguous. The section provides for reporting restrictions in proceedings before any court concerning a child.
33. A child is a person under the age of 18 years and so in giving the words their ordinary meaning, once a person is under the age of 18 years and where proceedings are before any court, reporting restrictions apply.
34. Applying the maxim expressio unius exclusio alterius; to express one thing is to exclude another, means in this context that adults are not entitled to reporting restrictions or anonymity under s. 93(1). No provision of the 2001 Act as amended, provides for an extension of reporting restrictions and anonymity to those who age out before proceedings conclude. Reporting restrictions are expressly limited to those under the age of 18 years.
35. So, it is clear that subsection 1 provides for restrictions on revealing the identity of a child, or any matter which could lead to the identification of a child who is the subject of proceedings before any court which must of course include, as we have said, an appellate court.
36. When one goes on to consider subsection 5, the subsection expressly provides that the section, being the reporting restrictions, shall apply to proceedings on appeal, including proceedings by way of case stated.
37. While there is no mention in the subsection of limiting the application of the section to a child, it must be read with reference to subsection 1 which expressly relates to proceedings before any court concerning a child.
38. To read it otherwise makes little logical sense. Whilst the applicant's argument is, at first blush, persuasive, that is that subsection 5 must apply the restrictions on identifying a child to the proceedings on appeal even where the child has aged out before the proceedings conclude, we are not persuaded that this is so.
39. To construe subsection 5 in that way would require this Court to rewrite and extend the plain meaning of the language used.
40. Additional words would be required such as: "(5) This section shall apply in relation to proceedings on appeal from a court concerning a child or a person who has reached the age of 18 years on or before the hearing of the appeal."
41. In our view, this would strain the language beyond measure. This is not the role of the courts and would fail to respect the separation of powers. We are of the opinion that the literal meaning is the correct one.
42. Take for example, a situation where a child offender is before a court of trial as a child, but ages out during the proceedings. The Act does not provide that a person in that position continues to benefit from the safeguards under the Act. In the same way, the Act does not provide for the safeguards to continue should a child offender age out in the period between conviction/sentence and appeal.
43. In our view s. 93 applies only to a child, that is a person under the age of 18 years. While subsection 1 applies the restriction on reports or any identification of a child to proceedings before any court, and so subsection 5 may be said to be somewhat superfluous, we believe that subsection 5 applies to those who appeal and who are still under the age of 18 years.
44. By way of observation, it may be that subsection 5 was substituted by s. 139 of the 2006 Act in circumstances where the section as originally enacted referred expressly to the Children Court and so in amending subsection 1, it was deemed necessary to amend subsection 5. However, that is purely an observation and somewhat speculative.
45. S. 93(1) and (5) are clear and unambiguous in their terms. Reporting restrictions apply to a child, and as defined under the 2001 Act, that is to a person under the age of 18 years.
46. As there is no ambiguity in the words used in the subsections, there is no necessity to resort to a consideration of the purpose or intention of the legislature. There is no need to depart from the literal approach.
47. Given the separation of powers, this Court cannot modify or depart from the express statutory provision to achieve what may be desirable.
48. Accordingly, the orders sought are refused.
Result: Refuse