District Court dismisses premature application for trial prohibition as it lacks jurisdiction to pre-judge capacity.

[2016] IEDC 10

THE CHILDREN COURT- DUBLIN METROPLOITIAN DISTRICT COURT

DIRECTOR OF PUBLIC PROSECUTIONS (DPP)

APPLICANT

-AND-

R.McA

Defendant

1. The defendant R.McA [“the defendant “] was born in 2000s and is currently a teenage child. He is in full- time care of the State.

He was admitted to a Special Care Unit for young persons [ “SCU “] on foot of a High Court Order granted in summer 2014 pursuant to

section 23B of the Child Care Act 1991 as inserted by section 16 of the Children Act 2001 and remained in a SCU for a period of

approximately 22 months. The defendant is no longer a resident in a SCU, but he is still under the care of the CFA in a step down

facility run by Solas.

2. The Child and Family Agency otherwise known as Tulsa [“The CFA “] is the dedicated State agency responsible for improving the

well-being and outcomes for children.

3. The defendant is charged by:

A. Garda A with alleged 1 offence of criminal damage in a SCU in winter 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

B. Garda B with alleged 1 offence of criminal damage in a SCU in winter 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

C. Garda C with alleged 1 offence of assault causing in a SCU in winter 2015 contrary to section 3 of the non-fatal

Offences against the Persons Act 1997.

D. Garda D with alleged 1 offence of criminal damage in a SCU in winter 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

E. Garda E with alleged 2 offences of criminal damage in a SCU in autumn 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

F. Garda F with alleged 1 offence of criminal damage in a SCU in autumn 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

G. Garda F with alleged 1 offence of criminal damage in a SCU in autumn 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

H. Garda G with alleged 1 offence of criminal damage in a SCU in autumn 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

I. Garda H with alleged 1 offence of criminal damage in a SCU in autumn 2015 contrary to section 2(1) of the Criminal

Damage Act 2001

J. Garda I with alleged 1 offence of criminal damage in a SCU in autumn 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

K. Garda J with alleged 1 offence of criminal damage in a SCU in autumn 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

L. Garda K with alleged 1 offence of criminal damage in a SCU in autumn 2015 contrary to section 2(1) of the Criminal

Damage Act 2001.

Submissions

4. The defendant’s submissions both in writing and orally [together with a booklet of reports dated summer 2016] have been outlined

to the Court by his counsel, and instructed by solicitors.

5. The Prosecution replied in writing in summer 2016 and orally submissions were submitted by legal representative for the Director of

Public Prosecutions [“DPP”].

6. A report by Dr. GC, consultant child and adolescent psychiatrist, dated spring 2016 [“The GC Report “ ] was furnished to the Court.

7. The GC Report is accepted by the prosecution and defence.

8. The letter of instructions to Dr. GC to enable him to prepare his report was agreed by the DPP, the Defence and this Court prior to

Dr. GC furnishing his report.

9. The Prosecution and Defence agreed that one of the issues that arise in this case is of “mens rea“ and capacity to litigate in a

criminal trial. I am in agreement that these issues are not ones of capacity and not mental disorder as defined in the Criminal Law

Insanity 2006 [” the 2006 Act “] as amended. In effect, it is accepted the defendant doesn’t plead an insanity defence or a fitness to

plead procedure as outlined in the 2006 Act.

Defendant’s childhood issues

10. The defendant has Attention Deficit Hyperactivity Disorder [“ADHD “] which is a medical/neurobiological condition in which the

brain’s neurotransmitter chemicals, noradrenalin and dopamine do not work properly. It is a disorder that, can without proper

identification, treatment and management, have serious and long lasting consequences and/or complications for him. ADHD is a

genetic and long-term condition which affects learning and behaviour right through teenage years and in many cases beyond into

adulthood.

11. ADHD is a disorder that can co-exist to a greater or lesser degree, with other disorders.

12. The defendant also suffers a functional psychotic illness or a severe mood disorder both of which can be associated with driving

behaviours outside of a person’s control.

13. In the course of The GC Report it states that the defendant has, on the balance of probabilities, the capacity to litigate and to

instruct his legal representative. (Page 10) “There is no evidence of an active illness process in these incidents that would negate

responsibility for his actions shortly after. Some of the incidents were for the defendant uncomfortable to recall and in some instances

he couldn’t recall all of the incidents.“ He “does not suffer a functional psychotic illness or a severe mood disorder. Both of which can

be associated with driving behaviours outside of a person’s control. “

14. The GC Report states the defendant does suffer from post traumatic stress disorder (PTSD) over many years and acknowledges

the defendant has attachment disorder. According to this report, PTSD has “been associated with affect dysregulation and

dissociation which may be relevant to the period leading up to a violent outburst. This may be considered a mitigation factor, but

does not take ones capacity to decide on ones behaviour or to seek help at that time.” [Page 11]

15. It further states, in regard to ADHD, that the defendant “has been noted to have an association with aggression and hostility, but

this is not common and notes indicate that the defendant’s “behaviour showed significant improvement after he commenced this

medication. This suggests that this medication has a calming effect.” [Page 11]

16. In relation to further medical reports furnished to the Court, I have reviewed the reports from Dr. L, consultant child and

adolescent psychiatrist, dated early autumn 2015 and late autumn 2015. It is apparent from the late autumn 2015 report that the

defendant has a complex PTSD and has been using “self harm as a maladaptive coping mechanism, in the context of trying to make

sense of a very traumatic childhood”. In this context the disclosures by the defendant raise very serious copying issues for him; I was

also furnished with a social work report of Dr. D, social worker, dated winter 2015.

Defence Submission

17. Defence Counsel submitted to the Court that the criminal justice system and the adversarial context of the Children Court were

not appropriate in this case and, therefore that there was no readily available option to the Court in novel cases such as this one.

Counsel for the defendant also referred to Article 5 (1)(d), the European Convention of Human Rights, section 16 of the Children Act

2001,DG v Ireland (2002) 35 E.H.R.R.33, Clifford v DPP [2008 ISHC322 and in particular the defendants “ maladaptive coping

mechanisms”.] The Defence questions the necessity to possibly criminalise the defendant considering the high threshold of the special

care procedure in the High Court for the defendant.

18. In essence the defendant was 22 months in civil detention for very complex needs – a period in “special care” it was submitted

greatly in excess of the usual period that children with complex needs require in special care.

19. Counsel for the Defendant also stated to the Court that the issues raised by her, could be dealt with as a preliminary trial issue

now and, therefore, similar to how the issues of prosecutor delay in the Children Court are generally dealt in practice.

DPP submission

20. The DPP in their submission stated that “the issues raised by the accused can be reduced to two net questions:-

a) Having regard to the personal circumstances of the accused, is he capable of forming the mental elements required to

commit the offences alleged?

b) Does the fact that the accused’s behaviour which led in part to his being civilly detained in a SCU on foot of a High

Court Special Care Order preclude the prosecution from prosecuting him for offences involving similar type behaviour on

the basis of offending the doctrine of “double jeopardy”?”

21. The accused contends that if the answer is “no” to the first question, the Children Court has jurisdiction to prohibit the

prosecutions from proceeding. If the answer to question two is “yes”, then the trial judge in the Children Court has jurisdiction to

dismiss the prosecutions.“

22. With regard to point 1 above the DPP submitted “that in the absence of a legislative or jurisdictional basis to prohibit the criminal

proceedings from proceeding, it is respectfully submitted that the Court has no option, but to proceed with the prosecutions and

decide, after hearing all of the evidence, if the prosecution has made out the requisite elements required to prove its case. If the

prosecution has not made out the requisite elements required to prove its case, the Court can dismiss the prosecution where this

failure occurred.”

23. In regard to point 2, the DPP submitted extensive case law, but as the defence stated in they were not relying on the doctrine of

“double jeopardy” I don’t propose to analyse this matter further except to say I accept the issue of “double jeopardy” doesn’t arise in

this case. The defence did link the Special Care proceedings and these proceedings in so far as they point out the defendant have

been in civil detention for 22 months.

24. The DPP stated that “the High Court Special Care proceedings were entirely separate and distinct from the criminal law

proceedings before this Court”. The function of the High Court was to consider the immediate welfare of the child and having heard

from the competent state agency tasked with the role of looking after the welfare of children, decided to use its civil jurisdiction to

protect the welfare of the child accused by ordering his detention in a SCU.

25. It is respectfully submitted that the behavioural traits of the accused that led in part to the High Court exercising its civil

jurisdiction to order the detention of the accused in a SCU, did not comprise of properly constituted criminal proceedings upon which

the accused has been tried and convicted. The High Court was not a competent court to try the accused for criminal offences when

dealing with the Special Care proceedings.

26. On the converse, the Children Court is tasked with being a competent court to deal with criminal law proceedings involving

children. Criminal law proceedings must issue by way of summons or charge sheet upon direction by the relevant competent

prosecuting authority, such as An Garda Síochána or the DPP. The accused must be charged with an offence known to law. Once the

criminal law proceedings are brought before the Children Court, the Court must proceed to deal with same in accordance with law.

27. During the course of oral submissions, reference was made by the DPP to a judgement I delivered entitled Director of Public

Prosecutions v D M dated the 10th September 2015. In my judgement, which also involved a very vulnerable child in Special Care, I

applied section 1[1] of the Probation Act 1907 to a plea of guilt to various charges of criminal damage and one charge of assault

causing harm. In doing so I stated in the very limited options open to me in sentencing in that particular case that the crimes were

being acknowledged and the defendant who had very significant childhood issues to contend within a civil context could be allowed to

continue to address them in an appropriate therapeutic way. However, that was a sentencing case and, therefore, not relevant to

the Defence application before the Court except in so far as the DPP submit that in a trial before this court, the defendant can be

reassured that the Court is very familiar with complex cases concerning children and, therefore, the defendant will receive a fair trial.

Legal issues

28. It is part of Irish law that mental guilt is required to convict a person of a crime and that the person will not be convicted unless

it can be shown that the mental state was worthy of punishment There are some exceptions which arise in strict liability cases, but

these exceptions are not a matter for this defendant

29. Therefore, the state of mind of a child charged with a crime is the mental element of the offence of which there are several kinds.

The High Court decision of Mr. Justice Peter Charlton in Clifford v DPP [2008 ISHC 322 – 29TH October 2008] is instructive as to what

is required in intention and of “construing the evidence in the context of the ultimate question before the Court as to whether the

prosecution have proved the external and mental elements of any particular offence to the requisite standard of proof.“ It is also

important that intention is not confused with other necessary proofs such as motive see Ham v DPP, [1975 AC], the People [DPP] V

Douglas and Hayes [1985 ILRM 25].

30. A distinction can also be made between objective and subjective recklessness. Objective recklessness is applicable where the

accused was not aware of a risk, but should have been. Subjective recklessness is where the accused knew of the risk or had the

foresight of it.

31. I note, in so far as children and the criminal law are concerned, there is a political and academic debate that there is a legislative

conservatism in regards to mental disorders on policy grounds for fear that guilty criminals might escape justice where they knew or

ought to know what they were doing was wrong. In that debate there is a view that there is a lack of judicial activism in this area

which has resulted in mental disorders being a limited defence confined largely to a mitigation factor in limited circumstances

.However, it is not within the function of the Children Court being a court of statute and of limited jurisdiction to rewrite the law in

this area or even comment on this debate except to note it.

32. The Children Court is primarily a rights-based court. However, the nature of the proceedings often involves welfare concerns.

These concerns are secondary to the rights of the child.

33. The Children Court does have limited powers in relation to the needs of special care or protection of a child:

a) If a judge is satisfied that, on a criminal charge before the Court, a child is in need of special care or protection, the

judge may call a family welfare conference. [Section 77 (1) (a) of the Children Act 2001 as amended by ss. 17 (a) & 33

(a) of the Child Care (Amendment) Act 2011.]

b) If in respect of whom the conference has been convened it is deemed that the child is in need of special care or

protection the Child and Family Agency (C.F.A.) (formerly the Health Service Executive) should:

(i) apply for a special care order under the Child Care Act of 1991,

(ii) apply for a care order or supervision order under the Act of 1991, or

(iii) provide any service or assistance to the child or his / her family

[Sections 7-8 of the Children Act 2001 as amended by ss.28-29 of the Child Care (Amendment) Act 2011]

34. In D.P.P. (Murphy) v. P.T. [1999] 3 I.R. 254 the District Court judge had questioned the boy’s fitness to plead and directed the

Eastern Health Board to submit its proposals to the Court for a secure residential assessment to confirm a preliminary diagnosis of

Asperger’s Syndrome, (or such other diagnosis as may be warranted), and thereafter a care programme while he continued in the care

of the Eastern Health Board, and if necessary such assessment would be carried on outside the jurisdiction of the Court. In the High

Court (McGuinness J.) held that the “real and primary issue” before the District Court was “engaged in a bona fide effort to promote

the welfare of P.T.”, there was, according to the judge: “a danger that in so doing the constitutional parameters relevant to a

criminal trial may be ignored or unjustly postponed”.

35. In that case McGuiness J. also stated that:

“Insofar as there is a clash between the “general welfare” rights and the rights specifically delineated by the Constitution

as being relevant to the trial of offences, this second category of rights should in general have priority and should prevail.

It is also desirable that there should be a clear division between criminal proceedings which decide the guilt or innocence

of an accused and child care proceedings which make provision for the general welfare and future care and custody of a

child.” [1999] 3 I.R. 254 at 271]

36. In Re D.K., a Child, [Re D.K., a Child] [2007] I.E.H.C. 488 (Unreported, High Court, MacMenamin J., and 18th July, 2007)]

MacMenamin J. held, having regard to the judgment of McGuiness J. in PT, that:

“It is impermissible that there should be a hybrid form of civil / criminal proceedings in any form. Any application regarding

minor facing criminal charges before another court may be brought only on notice to the HSE and the prosecuting

authorities in such criminal proceeding.”

37. The E.Ct.H.R. has ruled that the right of children to participate in legal proceedings is a procedural right under Articles 6 and 8 of

the E.Ct.H.R.

38. In T. v. U.K. [16 December 1996 (Application no. 24724/94)] the Court stated at paragraph 84 that “it is essential that a child

charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional

capacities, and that steps are taken to promote his ability to understand and participate in the proceedings.”

39. In V. v. U.K [16 December 1996 (Application no. 24888/94)]. the E.Ct.H.R. held that the two 11 year old boys who had been tried

for murder in an adult Criminal Court had not effectively participated in their own criminal trial.

40. In S.C. v. U.K [5 June 2004 (Application no. 60958/00)] the E.Ct.H.R. held that that there had been a contravention of Article 6

of the E.Ct.H.R. as the child who was tried before the adult Criminal Court did not effectively participate in the trial as a result of his

low- level of intellectual ability. The Court elaborated that effective participation “presupposes that the accused has a broad

understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which

may be imposed.”

41. In D.G v Ireland [16 May 2002 (Application no. 39474/98)] the E.Ct.H.R. ruled that Ireland was in contravention of Article 5(1) of

the E.C.H.R. for failing to provide a non-offending child with behavioural problems with a place in a safe and therapeutic unit and

detaining the child in St. Patrick’s Institution.

42. The establishment and constitution of the District Court arises under section 5 of the Courts (Establishment and Constitution) Act

1961. Section 71 of the Children Act of 2001 provides that the District Court shall be know as the Children Court in hearing charges

against children. The effect of this is that both the District Court and the Children Court are courts of statute and of limited

jurisdiction. The District Court and the Children Court do not have an inherent jurisdiction to prohibit a trial.

Applying law to the facts in this case

43. In my view the application by the defence is premature in that a trial has not yet taken place. The defendant is able to take part

with assistance in the proceedings. The application by the defence in this case is tantamount to an application for prohibition of the

trial and the Court doesn’t have jurisdiction to do so. The case is different from the operation of “prosecution delay trials“ in that in

the latter case there is a trial, but that with agreement from all parties, the prosecution and defence witness do not attend the first

day of the trial for convenience purposes. In this case, the Court is being asked to take a general view on the charges and in my view

doesn’t have jurisdiction to do so.

44. The defence can bring their application for each case at the trial. At this stage the evidence produced to the Court is on the

balance of probabilities the defendant has capacity to litigate the criminal trial on a functional approach to capacity. The impact of

“maladaptive coping mechanisms” and “mens rea” can be considered on an individual basis at the trial.

45. Civil and criminal proceedings should be considered separately and the defendant enjoys the presumption of innocence. It is a

matter for the Court and the parties involved to arrange the proceedings in such way that ensures that there is a fair trial for the

defendant and taking into accounts his significant vulnerabilities.

Judge John O’Connor