Non-availability of ‘enhanced remission’ for detained children was not unfair in principle

O'Malley J (nem diss): Sentences of detention for children - Children Act 2001 - entitlement to remission of sentence - whether entitled to remission at same rate as adults - sentence to detention in children detention school - enhanced remission under Prison Rules - failure to provide for remission for children serving sentence of detention - plea of guilty to one count of robbery - whether applicant detained under a detention and supervision order (s 151) or a children detention order (s 142) - whether suspended sentences available for children under legislation - equality claim.

"At present the only children detention school in the State is Oberstown Children Detention Campus, established on the amalgamation of Oberstown Boys’ School, Oberstown Girls’ School and Trinity House School in 2016 (S.I. 273/2016). St. Patrick’s Institution closed on the 31st March 2017. Accordingly, all children serving sentences of detention are now accommodated in Oberstown."

"Surprisingly, neither party in the instant case has referred to A.S. and this issue has not been fully argued. Assuming that the Court of Appeal was correct, it would have to be said that the sentence in this case did not accord with the provisions of the Act of 2001. It cannot be deemed to have been an order under s.151, since (unlike the situation in Byrne) more than half of the sentence was suspended. Neither did the trial judge follow the procedure in s.144, which would have required a deferral of sentence (for however brief a period) before finalisation. The appellant was, according to the order of the Circuit Court, sentenced on the day on which he was arraigned and the evidence heard. The reliance of the State respondents on the maxim omnia praesumunter rite esse acta is misplaced –this presumption has a limited application in criminal law and cannot be seen as covering a sentence imposed other than in accordance with law. However, in my view nothing turns on this issue in the instant case. The appellant has never suggested that thesentence was invalid, and cannot now complain that more than half of it was suspended. He appears to have maintained the argument that he was dealt with under s.151 because of the belief that it is the only provision that allows for suspension or part-suspension. This is clearly incorrect, having regard to s.144 in its entirety."

"Clearly, the appellant has not challenged the validity of Rule 59 of the Prison Rules, nor has he any interest in striking down the enhanced remission scheme as it applies to adults. It would not have been possible for him to challenge the lawfulness of his detention under a regime that did not include enhanced remission, since, unlike standard remission, enhanced remission cannot be presumed upon. It cannot be applied for until a late stage in a prisoner’s sentence, and is a matter within the discretion of the Minister for Justice and Equality, having regard to the factual situation of the prisoner at the time of the application. Essentially, therefore, a person in the appellant’s situation seeks an order of the court that he be included in a statutory scheme that by its terms excludes him. That raises issues in relation to the separation of powers which, while not necessarily fatal to such a claim, have simply not been addressed in these proceedings."