The High Court has dismissed a challenge by a man who was 17 when he allegedly took part in a robbery but had turned 19 by the time he first appeared before the Children’s Court. The court held that his exclusion from a procedure that can allow child defendants to be tried summarily was not unlawful discrimination.
In a judgment delivered on 2 July 2024, Ms Justice Siobhán Phelan refused the relief sought by Stuart Brophy and dismissed his judicial review proceedings. She said she would hear the parties on the form of the final order and any consequential matters if they could not agree.
The alleged robbery took place at a shop on 15 April 2019. The prosecution case, as set out in the judgment, is that a 36-year-old co-accused entered with a knife and told a shop worker to open the till, while Brophy allegedly entered as a lookout. These are allegations; the judgment did not determine whether either man committed the offence.
Brophy was born on 19 March 2002. He first appeared before the Children’s Court on 9 March 2022, by which time he had reached adulthood. The District Judge therefore had no jurisdiction to consider whether to accept the case under section 75 of the Children Act 2001. That provision gives the Children’s Court discretion to deal summarily with some indictable offences against children, subject to statutory conditions; it does not guarantee summary disposal. If the court accepts jurisdiction, the custodial sentence limit is 12 months.
Brophy argued that losing the opportunity to seek a section 75 hearing because he turned 18 before prosecution breached constitutional equality protections and rights under the European Convention on Human Rights. The respondents argued, among other things, that the proceedings were late and that the case was unlikely to have been dealt with summarily even if he had still been under 18.
Justice Phelan rejected the time objection. She found that the judicial review was brought within three months of the 20 April 2022 order sending Brophy forward for trial. She also found that he had standing to challenge the age-based exclusion: the evidence showed a reasonable prospect that the Children’s Court might have accepted jurisdiction, taking account of his age, maturity and alleged role.
But the judge concluded that section 75 is primarily intended to protect children who are still children while participating in the criminal process. The legislature could rationally distinguish between defendants who remain under 18 when they come before the court and those who have aged out, she held. Brophy’s age and maturity at the time of the alleged offence could still be raised at sentencing if he is convicted.
The court rejected the constitutional and Convention claims. It did not decide Brophy’s guilt or sentence him; the judgment records that he had been sent forward for trial in the Dublin Circuit Criminal Court.