The High Court has rejected a teenager’s constitutional challenge to his exclusion from the fixed charge notice (FCN) scheme for public intoxication offences, holding that the distinction between adults and children was justified by the separate regime under the Children Act 2001.
The applicant, identified in the judgment as LT, was 16 when charged with being intoxicated in a public place on 17 July 2022. Because FCNs under the Criminal Justice (Public Order) Act 1994 are available only to people aged 18 or over, his case was considered under the Juvenile Diversion Programme. A programme director deemed him unsuitable for admission in this case, and he was summoned to appear before Dungarvan District Court.
LT argued that excluding under-18s from the FCN procedure breached the right to equality before the law under Article 40.1 of the Constitution. His counsel submitted that the scheme could let a person pay a fine, avoid a criminal conviction and save court and Garda time. They argued that children should also be able to use it, and that the diversion programme was more cumbersome. The respondents argued that the 2001 Act provided a comprehensive system for dealing with children and that its supervision requirements supported the age distinction.
Mr Justice Barr accepted that the FCN procedure and diversion programme differed, but held that the Oireachtas was entitled to provide for children to be dealt with under the 2001 Act, where supervision was a key element. He found that excluding under-18s from FCNs supported the legislative aim of oversight of suspected criminal behaviour by children and was not arbitrary, capricious or irrational. The court therefore held that the exclusion did not breach Article 40.1.
A subsidiary claim that the exclusion infringed the applicant’s right to a fair trial under Article 38 was not seriously pursued at the hearing. The judge found no basis for that claim and said the applicant’s right to a fair trial remained intact. The decision not to admit him to the diversion programme was not challenged in these proceedings.
The court refused all relief sought. Because the judgment was delivered electronically, the parties were given two weeks to make brief written submissions on the terms of the final order, costs and any other matters. The case was listed for mention on 14 May 2024 to make final orders.