In the Matter of Section 52 of the Courts (Supplemental Provisions) Act 1961.

The Director of Public Prosecutions (at the suit of Garda John Stratford) (prosecutor) v Alan O'Neill (accused).

In the Matter of an Intervention by the Attorney General.

Practice - Consultative case stated - Accused charged with larceny of a bicycle - Appearance in children's court - Inditable offence - Whether inquiry by district judge to assess the capacity of the young person to give an informed consent as to his mode of trial could amount to prejudice - Summary Jurisdiction Over Children (Ireland) Act (1884), section 5 - Children Act 1908 (8 Edw.7, c 67) section 133 - Constitution of Ireland 1937, article 50.

The High Court (Mr Justice Smyth); judgment delivered 24 September 1997.

Only the High Court and the Supreme Court have jurisdiction to consider the validity of any law having regard to the provisions of the Constitution. In this context the word "law" refers to laws enacted by the Oireachtas created by the Constitution. The position is very different in the case of pre1937 laws where there is no constitutional prohibition on any other court considering the consistency of a pre-1937 law with the Constitution.

Where a district judge is faced with a conflict between a pre-1937 law and the Constitution, he is bound to give effect to the higher law, namely the Constitution by disapplying the ordinary law. This does not mean that the accused could, as it were, institute the equivalent of declaratory proceedings in the district court to challenge the validity of pre-1937 legislation, but rather where the constitutional question arose incidentally in the course of ordinary proceedings the district judge has jurisdiction to pronounce on the question. Section 5 of the 1884 Act has no bearing on the accused's right to trial in due course of law, but simply provides guidance as to the manner in which the summary jurisdiction of the district court may be exercised. The provision of the 1884 Act does not infringe the constitutional right or rights of the accused and has survived the enactment of the Constitution. The evidence of character and antecedents is only to be embarked upon so that the district judge may be in a position to assess the quality of the consent that might be forthcoming by the person of tender age.

The High Court so held in answering all of the questions in a consultative case stated in the affirmative.

Aileen Donnelly BL for the accused; Gerard Hogan BL for the Attorney General.

Mr Justice Smyth said that this matter came before the court by way of a consultative case stated from District Judge James Paul McDonnell for an opinion of the court on the following questions of law:

(a) Can a consultative case stated be referred by a judge of the District Court to the High Court in respect of the constitutionality of a pre-1937 law?

(b) Whether a judge of the District Court has jurisdiction to entertain a challenge to the constitutional validity of a statute enacted prior to 1937?

(c) If the answers to both questions are "yes", whether the relevant provisions of section 5(1) of the Act of 1884 have been carried over in accordance with article 50 of the Constitution?

Mr Justice Smyth said that the accused appeared at a sitting of the children's court in the District Court to answer the charge of larceny of a bicycle valued at £200 contrary to the provisions of section 2 of the 1916 Act (as amended). In conformity with the requirements of section 123 of the 1908 Act the District Judge established upon sworn testimony that the date of birth of the accused was 29 September 1980 and therefore, the accused was a young person to whom the provisions of section 5(1) of the 1884 Act apparently applied. The relevant part of section 5(1) of the 1884 Act (as amended by section 133(6) of the 1908 Act) provides that where a young person is charged before a court of summary jurisdiction with any indictable offence other than homicide, the court, if they think it expedient so to do, having regard to the character and antecedents of the person charged, the nature of the offence and all the circumstances of the case, and if the young person charged with the offence, when informed by the court of his right to be tried by a jury, consents to be dealt with summarily, may deal summarily with the offence.

Mr Justice Smyth said that the purpose of the section, in his opinion, is to afford an opportunity to the District Judge prior to embarking on the hearing of the charge (but knowing the nature of the offence) to be in a position to assess the capacity of the young person to appreciate and give an informed consent concerning any decision by such young person, when given the choice to be tried summarily or to be tried by a jury.

Mr Justice Smyth said that the exercise is in the nature of a preliminary investigation. It is clearly not the trial of the offence. It ensures that if given the choice the young person has an appreciation of the possible legal course and consequences of making such choice. The exercise far from infringing the principle of equality before the law has inbuilt in it the constitutional concern to ensure that due regard to differences of capacity are observed. The exercise is consonant with the concept of "in due course of law" which requires a fair and just balance between the exercise of individual freedom and the requirements of an ordered society. The freedom of the individual to make an informed decision as to which mode of trial he should elect for, is accorded by the section. The burden is cast upon the district judge to ensure that the young person, if he consents to a summary trial, knows what he is about.

The declaration provided for by the Constitution which is obligatory on a District Judge taking office to act "without fear or malice or ill will towards anyone" is the bulwark against the adjudicator bringing into the trial a disposition towards evidence of character that may be introduced in the preliminary enquiry.

The reference to character in the subsection is not the moral character but rather the degree of maturity and appreciation of correctness of choosing to proceed by way of summary trial or trial by jury. In his opinion, the reference to character and antecedents of the person charged in the section is in fact directed towards his legal character and antecedents. Mr Justice Smyth said that the district judge appeared to have been concerned that if he came to know the legal character and antecedents of the accused person that he might embark upon a trial in a prejudiced position. In Mr Justice Smyth's opinion the district judge's oath of office should be proof against this.

Secondly, he was concerned that the accused should be considered innocent until proved guilty and the tendering of evidence of character at this stage was a wholly inappropriate proceedings in the light of the terms of the Constitution. Whilst appreciating the strength of this argument, Mr Justice Smyth nonetheless thought it was ill founded. In the first instance this inquiry is to be undertaken if the court of summary jurisdiction think it expedient to do so. If the court does think it is not expedient to do so, then there is no necessity to embark on the inquiry. If the court thinks it expedient to do so it may do so but ultimately it is the consent of the person charged with the offence who has the deciding as to whether the course to be adopted is to be one of summary trial or trial by jury. Mr Justice Smyth referred to Articles in the Constitution:

Article 31.1 of the Constitution of Ireland, provides: "No person should be tried on any criminal charge save in due course of law."

Article 40.1 and article 40.3 provide:

"1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

"3. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen".

Article 50.1 provides:

"1. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstat Eireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

It seemed to Mr Justice Smyth said that when any pre-1937 legislation is attacked, the first step is to ask whether that legislation, or any part of it, was inconsistent with the Constitution of 1922. If it was not consistent with the Constitution of 1922, it was a law in force in Saorstat Eireann immediately prior to the date of the coming into operation of the Constitution of 1937.

Mr Justice Smyth said that the argument advanced by the accused is that the section of the 1884 Act obligates a district judge in the case of a young person only to consider the character and antecedents of the person charged when deciding if the offence is fit to be tried summarily; because no such requirement is made under the Criminal Justice Act, 1951 young persons are being treated unequally in this regard. It was submitted that the distinction was not saved by the argument that the 1884 Act allows greater scope for a court to deal summarily with offences concerning young persons as the consideration of the character and antecedents covers all indictable offences. It seemed to Mr Justice Smyth that the provisions of the Act were wholly consistent with the concept of having due regard to the differences of capacity.

He said that the judge was concerned as was clear from his case stated that having made such an inquiry he might have formed views concerning the accused. However, altogether from his oath of office, the position is somewhat unreal in the sense that the district judge asserted in such case that the matter could not be embarked upon fairly by him as he might be possibly prejudiced. If that argument were to have any validity then every district judge who is appointed, particularly in rural areas, where the district judge comes to know the community in some detail would in the case of a habitual offenders be ineligible to deal with them at all. It seemed to him that the subsection does have a due regard to differences of capacity.

Mr Justice Smyth then turned to the questions which were specifically posed by the district judge. Article 34.3(2) of the Constitution provides that only the High Court and the Supreme Court have jurisdiction to consider the validity "of any law having regard to the provisions of the Constitution" in this context the word "law" refers to laws enacted by the Oireachtas created by the Constitution: The State (Sheehan) v Kennedy [1966] IR 379. It is clear that Article 34.3(2) prevents the District Court from entering into an adjudication into the constitutionality of a pre-1937 law. Neither may this be done indirectly: Director of Public Prosecuons v Dougan (High Court, 30 July 1996, unreported judgment of Mr Justice Geoghegan); nor is it permissible for the district court judge to seek to exercise jurisdiction in this area by way of case stated: The Minister for Labour v Costello [1988] IR 253.

Mr Justice Smyth said that the position is very different in the case of pre-1937 laws, where there is no constitutional prohibition on any other court considering the consistency of a pre-1937 law with the Constitution. District Judges must subscribe to the Declaration "to uphold the Constitution and the laws". The courts have drawn attention to this provision to emphasise the duty of the lower courts to enforce the Constitution. Thus in The People (The Director of Public Prosecutions) v Lynch [1982] IR 64 Mr Justice Walsh said that such judges were not dispensed from or expected to overlook, their constitutional obligation to uphold the Constitution in discharge of their constitutional legal function of administering justice. Furthermore in Ellis v O'Dea [1989] IR 531 Mr Justice Walsh spoke of the "undoubted residual jurisdiction of the District Court to protect the constitutional rights of any person appearing before it". More recently in Coughlan v Patwell [1993] 1 IR 31 Mrs Justice Denham stated that the district court has a duty to act constitutionally and to act in such a manner as to preserve the individual's constitutional rights.

Mr Justice Smyth said that while it was correct to say that Mrs Justice Denham's comments were made in the context of submissions to the effect that a particular detail infringed a constitutional right, they apply with equal force to a situation where it is alleged that the pre1937 law in question infringes the Constitution. If, in appropriate proceedings the district judge is faced with a conflict between a pre-1937 law and the Constitution, he is bound to give effect to the higher law, namely, the Constitution by "disapplying" the ordinary law.

However, this does not mean that the accused could, as it were, institute the equivalent of declaratory proceedings in the district court to challenge the validity of pre-1937 legislation, but rather where, as in this case, the constitutional question arose incidentally in the course of ordinary proceedings, the district judge has jurisdiction to pronounce on the question. Counsel for the prosecutor submitted that the provisions of 5(1) of the 1884 Act did carry over following the enactment of the Constitution. Counsel argued that King v Attorney General [1981] IR 233 did not go so far as to say that the previous bad character of an accused can never by relevant in criminal proceedings. Furthermore he submitted that King's case is authority for the view that bad character can never in itself found the basis for an offence or conviction. The submission made by counsel on behalf of the Director of Public Prosecutions that section 5 has no bearing on the accused's right to trial in due course of law, but simply provides guidance as to the manner in which the summary jurisdiction of the district court may be exercised is correct. The provision of the 1884 Act does not infringe the constitutional right or rights of the accused and has survived the enactment of the Constitution. The submission by counsel for the accused that an accused person may be the subject of a high penalty on the basis of their character and antecedents was, in the view of Mr Justice Smyth, ill founded. The evidence of character and antecedents is only to be embarked upon so that the district judge may be in a position to assess the quality of the consent that might be forthcoming by the person of tender age.

Mr Justice Smyth concluded his judgment by answering all questions raised by the district judge in the affirmative.

Solicitors: Michael Staines & Co. (Dublin) for the accused ; Chief State Solicitor for the Attorney General