The High Court has quashed two decisions refusing a protected applicant admission to the Garda Diversion Programme and ordered the case to be reconsidered by a different officer.
Mr Justice Garrett Simons ruled that the applicant’s eligibility had to be assessed by reference to his age when the alleged offences occurred, not his age when charges were being considered. The applicant was under 18 at the time of the alleged offences but had turned 18 before his formal arrest.
The applicant had been charged with offences under the Child Trafficking and Pornography Act 1998. The judgment gives only a limited summary of the allegations, citing the risk of prejudicing a criminal prosecution. The applicant, through his solicitor, indicated that he accepted responsibility and would consent to a caution and supervision. Two Juvenile Liaison Officers recommended against admission. The Programme Director, Superintendent Colin Healy, refused admission on 30 July 2018 and confirmed the decision on 4 September 2018. He later wrote that the referral did not meet the programme’s criteria, but did not explain why.
The court found that section 23 of the Children Act 2001 sets the age threshold by reference to the date the behaviour took place. It rejected the Programme Director’s interpretation that someone who had turned 18 could not be admitted. The judge also held that decisions under the statutory programme are subject to judicial review and do not receive the same restricted review applied to prosecutorial decisions. An applicant challenging the merits of a programme decision must still meet the high threshold of showing that it was unreasonable or irrational.
The judge held that a refused applicant is entitled, if they request it, to reasons. Those reasons can be brief; the Programme Director may withhold them if disclosure would reveal sensitive material, but must then explain that basis. In this case, the lack of reasons prevented effective review, particularly because the correspondence suggested the refusal might have rested on the incorrect age test. The court said there was a prima facie case of that error, while noting that no affidavit evidence supported the State’s oral suggestion that the applicant had been considered on a concessionary basis.
The court set aside both refusals and remitted the admission question to the incumbent Programme Director for fresh consideration in light of the judgment. It directed that someone other than Superintendent Healy carry out the reconsideration, rather than requiring retrospective reasons for the earlier decisions.
The order restraining the Director of Public Prosecutions from pursuing the prosecution remains in force. The DPP may apply on seven days’ notice to have it lifted if reconsideration does not result in admission. Reporting restrictions also remain, protecting the identities of the applicant and the victim and prohibiting publication of specified identifying details and further offence details. The court reserved costs and the form of any stay pending appeal.