Young offenders have the same remission rights as adults

Judgement
The failure to afford young offenders in Oberstown detention school with the benefit of statutory remission rules amounts to a plain breach of the constitutional command of equality before the law.

Background
The Prisons Act 2007 provides for the remission of 25 per cent (and up to one-third) of a prisoner's sentence for good behaviour. This also applies to detention facilities in the juvenile criminal justice system such as St Patrick's Institution. No explicit provision, however, was ever made by law for such remission at the children's detention school at Oberstown, Co Dublin.

Following a conviction for attempted robbery, the 17-year-old applicant began a two-year sentence, with the final 12 months suspended, in Oberstown in July 2013. Taking credit for time already spent in custody, he was due to be released on February 26th, 2014.

However, that release date would have been brought forward to November 26th had the applicant been eligible for remission in the same way as offenders who are serving their sentences at other places of detention.

The applicant maintained that the lack of remission at Oberstown amounted to a form of discrimination contrary to article 40.1 of the Constitution, to wit, “All citizens shall, as human persons, be held equal before the law”.

The case centred on the question: Are young offenders detained at Oberstown entitled to remission in the same fashion as other prisoners and young offenders who are detained at St Patrick’s Institution?

The respondent, the director of Oberstown, argued the non-application of remission rules to young offenders there could be justified as a difference of “social function” on the grounds that their confinement could not be equated with ordinary prison conditions.

In these circumstances, Mr Justice Gerard Hogan said it could be contended that the rationale for remission within the prison regime (namely, a reward for good behaviour) would not translate into the special context of a compulsory educational regime for young offenders which was fundamentally different from prison itself.

Decision
Mr Justice Hogan noted that under the Prisons Act 2007 remission rules apply to an offender detained in St Patrick's Institution. If a young offender sentenced to four months in St Patrick's is transferred to Oberstown he will be entitled to one months' remission because the Children Act 2001 guarantees the offender's period of detention will not be altered simply by reason of transfer.

Mr Justice Hogan also pointed to Section 156B of the Children Act 2001 which says the Prisons Acts 1826 to 1980 and any other enactments relating or applying to St Patrick’s Institution shall apply to a children detention school and to persons detained therein.

The judge acknowledged an order commencing s. 156B had yet to be made but said if it were to be commenced then the Prisons Acts which relate or apply to St Patrick’s Institution would also apply to Oberstown. Therefore, young offenders held at Oberstown would be eligible for the statutory 25 per cent remission of their sentences.

In addition, the judge said the body of the Children Act 2001 suggests that detention in Oberstown is not regarded by the Oireachtas as being essentially different from detention elsewhere in the juvenile criminal justice system. Outlining the reasons for this, Mr Justice Hogan pointed to s. 96(1)(b) of the 2001 Act which requires the court to have regard to "the principle that criminal proceedings shall not be used solely to provide any assistance or service needed to care for or protect a child."

Mr Justice Hogan added: “It is clear from a consideration of the actual language of the 2001 Act itself that detention at a children’s detention school is simply another manifestation of detention within the juvenile criminal justice system.”

He said a custodial regime which brings about a stark difference in the release dates of offenders simply because of the location of their place of detention immediately engages the application of Article 40.1 of the Constitution with its fundamental command of equality before the law.

He continued: “There is no realistic option open other than to find that the failure to provide for the same remission regime at Oberstown as applies to offenders detained at St Patrick’s Institution violates the precept of equality in Article 40.1.”

The judge found the only practical way by which the applicant’s constitutional rights could be vindicated was to treat him as if the provisions of the remissions rule were applicable to him. “Therefore ... it follows that I must direct his release from that custody.”

- DAN GRIFFIN