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1. This matter comes before the Court by way of a consultative case stated from District Judge James Paul McDonnell for an opinion of this Court on the following questions of law:-

2. As appears from the Case Stated, the accused appeared at a sitting of the children's Court, District Court to answer the charge of larceny of a bicycle valued at £200 contrary to the provisions of Section 2 of the Larceny Act, 1916 (as amended). In conformity with the requirements of Section 123 of the Children Act, 1908 the District Judge established upon sworn testimony that the date of birth of the Accused was the 29th September, 1980 and therefore, the Accused was a young person to whom the provisions of Section 5(1) of the Summary Jurisdiction over children (Ireland) Act of 1884 apparently applied. The relevant part of Section 5(1) of the Act of 1884 (as amended by Section 133 (6) of the Act of 1908) provides as follows:-

3. The purpose of the Section, in my 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.

4. 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 bulwork 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 my opinion the reference to character and antecedents of the person charged in the section is in fact directed towards his legal character and antecedents.

5. The District Judge appears 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 my opinion his 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 proceeding in the light of the terms of the Constitution. While appreciating the strength of this argument I nonetheless think it is ill founded. In the first instance this enquiry 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 this enquiry. If the Court thinks it is 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. Considerable reference and reliance was made during the course of the hearing on the decision of the Supreme Court in King -v- The Attorney General and the D.P.P. (1981) IR 233. I am of opinion that that case which was primarily concerned with the provisions of the Vagrancy Act of 1824 is not in point. The concerns in that case were that a "suspected person" and "reputed thief" were expressions so uncertain that they could not form the foundation of a criminal offence. The argument made in King's case was that the provisions of the statute infringed inter alia the principle of equality before the law declared in Article 40, s.1. by reason of being applicable only to every suspected person or reputed thief. It may be of assistance to record here the precise provisions of the Constitution in the light of the arguments advanced.

6. Article 31, s.1, of the Constitution of Ireland, 1937 provides:-

7. Article 40, ss. 1 and 3, of the Constitution provides:-

8. Article 50, s.1, provides:-

9. When any pre-1937 legislation is attacked, it seems to me 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 not a law in force in Saorstát Éireann immediately prior to the date of the coming into operation of the Constitution of 1937. That was the position as noted by Kenny J. in his judgment in King's case. 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 is submitted that the distinction is 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 seems to me that the provisions of the Act are wholly consistent with the concept of having due regard to the differences of capacity. The Judge was concerned as is clear from his case stated that having made such an enquiry 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 asserts 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 seems to me that the subsection does have a due regard to differences of capacity.

10. Turning now to the questions which are specifically posed by the District Judge, it appears to me that in regard to both questions 1 and 2 that there is no jurisdiction in the District Court to consider the constitutionality of a pre-1937 law. Article 34.3.(2) of the Constitution provides that only the High Court and 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 (Sheeran) -v- Kennedy [1966] I.R. 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 Prosecutions -v- Dougan) High Court July 30, 1996 (unreported judgment of Geoghegan J.): nor is it permissible for the District Judge to seek to exercise jurisdiction in this area by way of Case Stated (the Minister for Labour -v- Costello _) (1988) [I.R.] 253.

11. However, 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. I have already referred in part to the Declaration that a District Judge must subscribe to pursuant to the Constitution which includes a Declaration "to uphold the Constitution and the laws." The courts have drawn attention to this provision to emphasis the duty of the lower courts to enforce the Constitution. Thus in The People (The Director of Public Prosecutions ) -v- Lynch [1982] I.R. 64, Walsh J. said such Judges were not:-

12. Furthermore in Ellis -v- O'Dea 1989 I.R. 531 Walsh J. spoke of the "undoubted residual jurisdiction of the District Court to protect the constitutional rights of any person appearing before it". More recently in the case of Coughlan -v- Patwell [1993 ] 1 I.R. 31 Denham J. stated (at page 37 of the report) as follows:-

13. While it is correct to say that these 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 pre-1937 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 "dis-applying" 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 Summary Jurisdiction Over Children (Ireland) Act, 1884 did carry over following the enactment of the Constitution. Counsel argued that King's case did not go so far as to say that the previous bad character of an accused can never be 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 DPP 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 in my judgment. 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 on behalf of the Accused that an accused person may be the subject of a high penalty on the basis of their character and antecedents is in my view illfounded. 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.

14. Accordingly I am of opinion and judgment that all questions raised by the District Judge are to be answered in the affirmative.