The Supreme Court has agreed to hear an appeal which will decide whether youths detained under the Children Act are entitled to seek enhanced remission in the same way as adult prisoners.
In a published determination, a three judge court said it will hear the appeal because it raises a legal issue of general public importance affecting a “reasonably significant” number of others.
A youth brought High Court proceedings seeking enhanced remission while he was detained in Oberstown Children Detention Campus on foot of a three year sentence, of which 20 months were suspended.
After the High Court dismissed his case, he sought a “leapfrog appeal” direct to the Supreme Court rather than the normal route via the Court of Appeal.
In its determination, the Supreme Court noted that, in the case of adult prisoners, remission, and enhanced remission, are regulated by the Prison Rules and the Prisons Act 2007. Although remission is referred to in the Children Act 2001, there is as yet no express legislative basis for its calculation, it said.
Some provisions in the Children (Amendment) Act 2015 will, when commenced, enable the making of regulations creating a detailed regime, it said. In the meantime, it appeared remission is granted to children under the power to remit and commute punishment contained in the Criminal Justice Act 1951 as amended.
Good behaviour
In this case, the youth was entitled to the normal one-quarter remission on the custodial element of his sentence, meaning he would serve 12 months if he was of good behaviour. In January of last year, he applied for enhanced remission and was informed consideration was being given to the commencement of the relevant provisions of the Act providing for remission.
His lawyers sought judicial review in February of last year and the youth was later unlawfully at large for a period of time, and remained so as of the date of the High Court judgment, the court noted.
In his appeal, he wised to argue that children are entitled to earn enhanced remission by “industry and good conduct”, a phrase used in the Children Act in referring to remission. He also argued the reasoning of Mr Justice Gerard Hogan in another case, B. (A Minor) v Director of Oberstown (2013), identifies a right to equality of treatment in respect of remission and the High Court erred in not concluding there had been a breach of the equality guarantee in his case.
The director of Oberstown and the State opposed his application for a leapfrog appeal. They argued the case was pointless because his original detention order has expired and he has turned 18.
The Supreme Court said the appeal raised an issue of general public importance. Although the case is “technically moot”, it is accepted the question raised may fall into the category of issues that affect a reasonably significant number of individuals. Given that children’s sentences are generally relatively short, it would be generally difficult to ensure the issue was addressed, the court also noted. It granted leave to appeal on this issue, a hearing for which would be fixed for a later date.
