The High Court ordered the release of a young person from St. Patrick’s Institution after finding that the District Court had imposed detention without requesting a probation report required by the Children Act 2001.
In a judgment delivered on 5 December 2012, Ms Justice Finlay Geoghegan held that the report was a mandatory precondition to a sentence involving detention when the person sentenced was a child. The applicant had been two days short of his 18th birthday when he appeared in Limerick District Court on 6 November 2012.
He pleaded guilty to charges relating to burglary and road traffic offences. The District Court imposed four months’ detention on four charges and took the remaining charges into consideration. The judge had indicated an intention to request a probation report, but the applicant’s solicitor told the court that the applicant would not cooperate with the Probation Service and argued there would be no point in requesting one. No report was requested.
The applicant’s mother and a solicitor brought an application under Article 40 of the Constitution. On 23 November, the High Court ordered that the applicant be produced and the grounds for his detention certified. After the respondent sought time to provide evidence from a Garda sergeant who had been present at sentencing, the applicant was released on bail that evening, on the same terms as his pre-conviction District Court bail, and undertook to return on 26 November. He did so, and the court heard the inquiry on affidavit evidence.
The respondent accepted that section 99 of the Children Act required a report, but argued that the applicant had lost the right to challenge his detention because his solicitor had opposed requesting one. The court was not satisfied that he had freely and knowingly chosen to waive an objection: there was no evidence about what he had been told of the judge’s statutory duty or the report’s purpose.
The judge also rejected the suggestion that the reported unwillingness to cooperate excused the failure to request a report. She said the court could not assume the child would remain unwilling after an adjournment. The report was intended to help the court consider the statutory requirements that detention be a last resort and the only suitable way of dealing with the child.
The High Court concluded that the failure was a fundamental defect going to the District Court’s jurisdiction to impose detention. It ordered the applicant’s release under Article 40.4.2. The ruling concerned the lawfulness of his detention; the judgment did not set out a separate determination of the underlying charges beyond recording the pleas and sentences.