Director of Public Prosecutions v P.B. (Approved) [2025] IESC 12 (13 March 2025)

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2024:000010

[2025] IESC 12

Between:

The People (at the suit of the Director of Public Prosecutions)

Respondent

-v-

P.B.

Appellant

and

The Attorney General

Notice Party

O'Donnell CJ.

Dunne J.

Charleton J.

O'Malley J.

Murray J.

Collins J.

Donnelly J.

Judgment of Ms Justice Iseult O'Malley delivered the 13^th day of March 2025

Introduction

1. The Children Act 2001 (as amended) confers a number of specific protections on children appearing as defendants in criminal trials. Pursuant to s. 3 of the Act, a "child" is a person under the age of 18 years. The applicable protections include a prohibition, in s.93 of the Act, on the public reporting of the identity of the child other than in certain defined circumstances. The sole issue in this appeal is whether a defendant who is charged and brought before the courts while still a child can remain entitled to that protection if they reach the age of 18 before the criminal proceedings, including any appeal, have concluded.

2. On the 16^th January 2020 PB, who was at the time a few months short of his 18^th birthday, murdered a young man named Cameron Blair by inflicting a fatal injury with a knife. The investigation and the court process both progressed rapidly. PB was charged with murder, pleaded guilty to that charge, and was sentenced in April 2020, a month before his birthday. As he was still a child, the mandatory sentence of life imprisonment was not applicable. The trial judge determined that the appropriate sentence in the case was one of detention for life, but fixed a review of sentence for a date in 2033. As of the date on which sentence was imposed PB was entitled to protection against the publication or broadcasting of reports that would reveal his identity, pursuant to s.93 of the Children Act 2001 (unless a court determined, for one of the reasons specified in the section, that public identification should be permitted).

3. PB appealed unsuccessfully against the severity of the sentence to the Court of Appeal. He reached the age of 18 before the appeal was heard, and that Court determined that, because he was no longer a child, s.93 had no further application. The parties in this appeal accept that if the appellant had not appealed he would have had life-long protection. He submits that the effect of the Court of Appeal's interpretation of the Act is that he has been deprived of that statutory protection simply because he exercised his right to appeal, and he contends that the Court of Appeal erred in its interpretation of the provision. While it is obvious that certain of the statutory protections conferred on children must necessarily fall away when a child accused of an offence turns 18 during the criminal justice process (so that, for example, the sentencing options available will alter) the appellant says that s.93 is to be properly construed as providing permanent protection where the accused was under 18 at the commencement of the proceedings.

4. The respondent ("the Director") and the Attorney General (who, with the consent of the parties, has been joined in the appeal as a notice party) contend that the Court of Appeal was correct. They say that the clear purpose of the provision is to protect children only, and that it is not available to someone who is no longer a child. They both accept, however, that the protection is presumptively permanent if the proceedings conclude before the accused reaches the age of 18.

5. This appeal was heard at the same time as the appeal in People (DPP) v CC. CC is in the same position as this appellant insofar as he has "aged out" during the appellate stages of his proceedings. He supports and adopts the submissions of PB.

The statutory context

The Child Care Act 1991

6. This enactment is relevant to the extent that it contained, in s.31, a prohibition on the publication or broadcasting of material likely to identify children in certain court proceedings. The prohibition covered Parts III (emergency care orders), IV (care proceedings) and VI (residential care placements) of the Act.

7. Section 31 has been amended a number of times since 2011 but not before that date.

The Children Act 2001

8. The Children Act 2001 is an ambitious, wide-ranging statute that brought in sweeping changes to the court process and penal systems applicable to juvenile offenders. That was not, however, its sole purpose and it also introduced some significant additions to the child care area. Section 16 of the Act of 2001 inserted two new Parts into the Child Care Act 1991 - Part IVA (imposing a duty on health boards to apply for special care orders in certain circumstances) and Part IVB (inter alia, conferring power on the health boards to apply for orders in relation to a private foster arrangement).

Section 93

9. As originally enacted in 2001, s.93 of the Act read as follows (note that r eferences in this iteration of the provision to "the Court" meant the Children Court):

93. - (1) In relation to any proceedings before the Court against a child or in relation to a child under Part 9 -

(a) no report shall be published or included in a broadcast which reveals the name, address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any child concerned in the proceedings, and

(b) no picture shall be published or included in a broadcast as being or including a picture of any child concerned in the proceedings or which is likely to lead to his or her identification.

(2) The Court may dispense to any specified extent with the requirements of this section in relation to a child if it is satisfied –

(a) that it is appropriate to do so for the purpose of avoiding injustice to the child, or

(b) that, as respects a child to whom this section applies and who is unlawfully at large, it is necessary to do so for the purpose of apprehending the child.

(3) Where the Court dispenses with the requirements of this section, it shall explain in open court the reasons for its decision.

(4) Subsections (3) to (6) of section 51 shall apply, with the necessary modifications, to matter published or broadcast in contravention of subsection (1).

(5) This section shall apply in relation to proceedings on appeal from the Court, including proceedings by way of case stated.

(6) This section shall not affect the provisions of any enactment concerning the anonymity of an accused or the law relating to contempt of court.

10. Thus, the original version of s. 93 applied only to proceedings in the Children Court under Part 9, which is concerned with the powers of that Court when dealing with child offenders, and to any appeal or case stated arising in such proceedings. The only circumstances in which the court could dispense with the requirements of the section related, in broad terms, to the interests of the child.

11. Section 93 was substituted in full by s. 139 of the Criminal Justice Act 2006 and now reads as follows:

(1) In relation to proceedings before any court concerning a child —

(a) no report which reveals the name, address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any such child shall be published or included in a broadcast or any other form of communication, and

(b) no still or moving picture of or including any such child or which is likely to lead to his or her identification shall be so published or included.

(2) A court may dispense, in whole or in part, with the requirements of this section in relation to a child if satisfied that to do so is necessary—

(a) where the child is charged with an offence—

(i) to avoid injustice to the child,

(ii) where the child is unlawfully at large, for the purpose of apprehending the child, or

(iii) in the public interest,

(b) where the child is subject to an order under section 257D [i.e. a behaviour order] –

(i) to avoid injustice to the child, or

(ii) to ensure that the order is complied with.

(3) Where a court dispenses with any requirements of this section, it shall explain in open court the reasons for its decision.

(4) Subsections (3) to (6) of section 51 of this Act shall apply, with the necessary modifications, to matters published or included in a broadcast or other form of communication in contravention of subsection (1).

(5) This section shall apply in relation to proceedings on appeal from a court, including proceedings by way of case stated.

(6) This section shall not affect the provisions of any enactment concerning the anonymity of an accused or the law relating to contempt of court.

12. It will have been seen that each subsection of the 2001 version, apart from subs.(6), has been amended. The reach of the section has been widened - where it initially applied only to proceedings "against a child or in relation to a child under Part 9" in the Children Court or on appeal from that court, it now applies to " proceedings before any court concerning a child" and to appeals therefrom. The power to dispense with the requirements of the section has also been widened - the original two grounds for dispensation related only to the interests of the child, but the additional grounds cite, in addition, the public interest and also the need to ensure compliance by a child with a behaviour order.

13. The effect of applying subsections (3) to (6) of s.51 of the Act is that it is an offence to contravene the prohibition on publishing, broadcasting or otherwise communicating the specified matters. The persons who may be criminally liable are:

(a) In the case of publication of the matter in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

(b) In the case of any other publication, the person who publishes it, and

(c) In the case of any broadcast, any body corporate which transmits or provides the programme in which the broadcast is made and any persons having functions in relation to the programme corresponding to those of an editor of a newspaper.

14. If an offence is committed by a body corporate, an individual acting as director, manager, secretary or other similar officer of the body will also be guilty if it is proved that the offence was committed with their consent or connivance, or that it was attributable to any neglect on their part.

15. It is a defence to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast in question was of a matter covered by the prohibition.

16. The word "broadcast" is defined as meaning the transmission, relaying or distribution by wireless telegraphy of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not.

17. To "publish" is to publish to the public or a section of the public.

Section 252

18. Section 252 makes provision for a similar prohibition in respect of publications and broadcasts relating to "any proceedings for an offence against a child or where a child is a witness in any such proceedings". As originally enacted, it read:

252 - (1) Subject to this section, in relation to any proceedings for an offence against a child or where a child is a witness in any such proceedings –

(a) No report which reveals the name, address or school of the child or includes any particulars likely to lead to his or her identification, and

(b) No picture which purports to be or include a picture of the child or which is likely to lead to his or her identification,

shall be published or included in a broadcast.

(2) The court may dispense to any specified extent with the requirements of subsection (1) if it is satisfied that it is appropriate to do so in the interests of the child.

(3) Where the court dispenses with the requirements of subsection (1), the court shall explain in open court why it is satisfied it should do so.

(4) Subsections (3) to (6) of section 51 shall apply, with the necessary modifications, for the purposes of this section.

(5) Nothing in this section shall affect the law as to contempt of court.

19. In People (Director of Public Prosecutions) v C. [2020] IECA 292, the issue was the effect of this provision in a case where a mother charged with murdering her small daughter had pleaded not guilty by reason of insanity. The trial judge ordered that nothing was to be published or broadcast that was likely to identify the deceased child. Ultimately, the mother was found by the jury to have been insane, but that fact was not reported in the media.

20. A number of media organs appealed the ruling to the Court of Appeal. They argued that the definition of "child" did not include a deceased person who died before attaining their majority, and that no useful purpose was served by reporting restrictions in such a case. The effect of the order made by the trial judge was to protect the anonymity of the accused, but the purpose of the section was to protect child victims from further victimisation. Reliance was placed upon the jurisprudence concerning the constitutional principle that justice be administered in public. Further, it was submitted that since a breach potentially involved the commission of a criminal offence the provision should be given a restrictive interpretation. The interpretation they proposed was to read the word "child" as meaning a living or dead child in subs.(1) but as meaning a living child only in subs.(2).

21. Delivering judgment on behalf of the Court of Appeal, Birmingham J. observed that the issue was not the definition of "child" per se, but the phrase "in relation to any proceedings for an offence against a child". He rejected the interpretation proposed by the media as artificial, involving as it did the need to interpret the word in two different ways in the same section. The language of the section was clear and unequivocal. The proceedings against the accused were proceedings in respect of an offence against a child, and it was not possible to interpret the section as not including a deceased person who was a child at the time of death. Nor would it be possible to exclude proceedings relating to an offence against a child if they came on for hearing after the child had reached 18.

22. Section 252 was amended soon after this decision, by the Children (Amendment) Act 2021. This short Act provides that the prohibition does not apply if, firstly, the proceedings related to the death of the child in question and publication would not result in either a contravention of subs.(1) in respect of another, living child or a contravention of s.93. Secondly, it is provided that the prohibition does not apply where the person against whom an offence is alleged to have been committed has attained the age of 18 on or before the date on which the proceedings commenced, and publication would not result in either a contravention of subs.(1) in respect of another, living child or a contravention of s.93. Thirdly, it is provided that the court may dispense with the requirements of the section if satisfied that to do so is appropriate in the best interests of the child, that it would not be contrary to the best interests of another, living child and that it would not contravene s.93.

Section 258

23. Section 258 applies where the following criteria are met: i) a person committed an offence as a child; ii) the offence was not one that required to be tried in the Central Criminal Court; iii) a period of not less than three years has elapsed since the conviction; iv) any sentence or order of the trial court has been complied with and v) the person has not been dealt with for an offence in that three-year period.

24. In brief summary, where these conditions are fulfilled the person is to be treated for all purposes in law as a person who did not commit the offence in question and was not prosecuted for it. They are not obliged to disclose the conviction for any purpose, including the answering of questions about previous convictions otherwise than in any subsequent proceedings before a judicial authority (s.258(4)(b)(i)). The term "proceedings before a judicial authority" is defined very broadly and includes proceedings before any body or person having power under, inter alia, the rules governing any association, institution, profession, occupation or employment, to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.

25. The person cannot be subjected to any liability or prejudice by reason of failure to acknowledge or disclose a finding of guilt covered by the section (s.258(4)(b)(ii)). Any obligation imposed by law, or by any agreement or arrangement, to disclose any matters to any other person shall not extend to a requirement to disclose the matter in question, and failure to disclose or acknowledge it shall not be a ground for dismissing or excluding the person from any office, profession, occupation or employment (s.258(4)(c)). However, the Minister is empowered to make, by order, such provision as in his or her opinion appropriate for excluding or modifying the application of s.258(4)(b)(i) and (ii) in relation to specified circumstances, and for exceptions from the provisions of s.258(4)(c) in specified circumstances. To date, no such order appears to have been made.

26. It must be noted here that s.258 is capable of applying whether or not the person concerned was prosecuted and convicted while still a child. So, for example, a child of 17 might be found in possession of a quantity of drugs, but not charged and tried until they are 18 and not convicted until they are 19. If the other conditions are met, that person will become entitled to the benefit of the section at the age of 22.

Other provisions of the Children Act 2001

27. Certain other sections in the Act are referred to in submissions. The Long Title describes it as "an Act to make further provision in relation to the care, protection and control of children, and, in particular, to replace the Children Act 1908, and other enactments relating to juvenile offenders, to amend and extend the Child Care Act, 1991, and to provide for related matters".

28. The Act confers a variety of new powers on the courts, and makes provision for a variety of new procedures, for the purposes of processing, determining and disposing of criminal charges against the children. It appears to be envisaged by the Act that most (but not all) such charges will be fully dealt with while the accused person is still a child and for that reason many of the powers conferred on the Children Court have no equivalent in cases where adults have been charged. Thus, for example, where a judge of the Children Court determines that a case involving an indictable offence (unless it is manslaughter or a charge that must be sent forward to the Central Criminal Court) is capable of being disposed of summarily the consent of the Director to such disposal is not required.

29. Part 9 sets out the powers of courts in relation to child offenders. In very brief summary, s.96 sets out the general principles applicable in such cases, including the principle that a penalty imposed on a child for an offence "should take the form most likely to maintain and promote the development of the child and should take the least restrictive form that is appropriate in the circumstances". A period of detention should only be imposed as a last resort. To that end, several new forms of non-custodial disposal are provided for in s.98 and in ss.115 to 141. Under s.99 a probation report must be requested before a custodial sentence can be imposed on a child.

30. Subsection (5) of s.96 (as substituted by s.136 of the Criminal Justice Act 2006) provides that when dealing with a child charged with an offence the court is to have due regard to the child's best interests, the interests of the victim of the offence and the protection of society.

31. Where a sentence of detention is imposed the child will be sent to a children detention school. Section 158 provides that the principal object of a children detention school is to provide appropriate programmes and facilities to promote the reintegration of children into society "and prepare them to take their place in the community as persons who are capable of making a positive and productive contribution to society".

Section 45 of the Courts (Supplemental Provisions) Act 1961

32. Section 45(1) of the Courts (Supplemental Provisions) Act 1961 has also been referred to. It provides that justice may be administered otherwise than in public in, inter alia, "lunacy and minor matters".

33. In McD v Director of Public Prosecutions [2016] IEHC 210 a seventeen-year-old was charged with an offence. He was 18 when charged by way of summons, and he sought prohibition on grounds of prosecutorial delay. He relied, amongst other matters, on the loss of the benefit of s.93. As far as this aspect was concerned, Humphreys J. held that s.45 of the Act of 1961 could protect the anonymity of the applicant in circumstances where the alleged offence was committed as a child. Therefore, the court of trial had jurisdiction to make an order protecting against the reporting of the applicant's identity. He reached this view on the basis that the wording of the provision, referring as it did to "minor matters", was in deliberately wide terms and was not confined to proceedings involving persons who were children when the matter came before the court. Such a rigid interpretation could, in his view, give rise to injustice if proceedings took a protracted length of time before finalisation. He also considered that it would be invidiously discriminatory if similarly aged persons, charged in relation to the same incident, were dealt with at different times so that one was protected while another was not.

34. This analysis was applied by Barrett J. in S.W. v Director of Public Prosecutions [2018] IEHC 364, in noting that the District Judge dealing with the case had made an order, prohibiting identification of an over-18 accused, under s.45(1). It has, however, been doubted in other cases in both the High Court and the Court of Appeal (discussed below).

Equivalent legislation in England and Wales

35. Section 39 of the Children and Young Persons Act 1933, which was in force until 2015, empowered a court to direct, in relation to "any proceedings" that there should be no public identification of any person under the age of 18 "concerned in the proceedings, either as being the person against or in respect of whom the proceedings are taken, or as being a witness therein". This provision was, therefore, a broad one that covered children involved in any capacity in both criminal and civil cases. In all cases, the power conferred was discretionary.

36. In R. (JC and RT) v. Central Criminal Court [2014] EWCA Civ 1777 JC and RT had pleaded guilty and been sentenced while they were 17, and an order was made by the Recorder under s.39 protecting their identities. A third co-accused contested the charges against him and was to be tried at a time when all three would be over 18. It seems to have been agreed that the involvement of JC and RT would be relevant to that trial, and they sought confirmation that the s.39 orders would continue in being. The Recorder ruled that the orders would expire on their 18^th birthdays.

37. The Court of Appeal of England and Wales held that the Recorder had been correct. The section was intended to protect children, not adults, and since it created a criminal offence it had to be read "not necessarily restrictively, but conservatively". To read it as protecting adults would be to give it an extended reading. Defendants had rights under Article 8 of the European Convention on Human Rights, but that Article should not be unduly emphasised over the rights of the media under Article 10.

38. Significantly, the Court held that the rehabilitation of a convicted child could not drive the interpretation of the section because the provision covered three groups - defendants, victims and witnesses - who might well have different interests and in respect of whom different arguments and justifications for anonymity could be put forward.

39. The provision in question has been replaced by a new measure which makes it clear beyond argument that protection for child defendants lasts only until the age of 18, while in the case of victims and witnesses it can last for life.

The Judgment of the Court of Appeal

40. Although not directly relevant to the issue now before the Court it may be of some significance that before PB's appeal against sentence was heard and determined by the Court of Appeal, that Court was asked to rule on its jurisdiction in such an appeal. In a judgment delivered on the 25th May 2023 the Court of Appeal followed its earlier decision in People (DPP) v Lambert [2023] IECA 124 in holding that, where a person who had been sentenced as a child came before it as an adult, its jurisdiction in an appeal against sentence was limited to either affirming the sentence imposed by the trial judge or, if it found an error in principle in the sentence, quashing it and freeing the appellant. It could not quash and re-sentence, as envisaged by s.3 of the Criminal Procedure Act 1993, because it could not impose either a sentence of detention (since the appellant was now an adult) or a sentence of imprisonment (since that would not have been a sentence that the trial court could have imposed on a child).

41. By the time the substantive appeal was heard, ss. 61 and 62 of the Criminal Justice (Miscellaneous Provisions) Act 2023 had come into effect. The new provisions permit the appellate Court, in such circumstances, to impose such sentence as it considers appropriate, and Lambert is no longer applicable. In this case, however, the Court found no error of principle and it affirmed the sentence imposed in the Central Criminal Court.

42. When giving its judgment on the jurisdictional issue, the Court of Appeal raised the question whether PB, having reached adulthood, remained entitled to the protection of s.93 of the Act of 2001. This was left over until after the substantive sentence appeal had been determined, at which stage a motion was brought on his behalf seeking orders maintaining his anonymity.

43. The appellant argued that s.93 should be interpreted so as to continue throughout the criminal process. It was contended that subs.(5) had the effect of continuing the restrictions in place at the trial during the appellate stage, whether or not the person had reached 18. To interpret the provision in this way would, it was submitted, further the important statutory objective of assisting in the rehabilitation of a child after the conclusion of criminal proceedings. The alternative interpretation would hinder the exercise of the right of appeal by a child who might "age out" during the appeal process. This would occur if the prospect of being publicly identified inhibited a child in making the decision whether to appeal or not. It would also infringe Article 40.1° of the Constitution by drawing an invidious distinction between children in that position and those who did not risk losing their anonymity.

44. The Director submitted that the section was clear and unambiguous and therefore did not require a purposive interpretation. The literal interpretation was, on her argument, that only a "child" had the benefit of the protection and there was no provision for extension to a person who was no longer a child. Reliance was placed on Independent Newspapers v IA [2018] IEHC 120, DK v Director of Public Prosecutions [2023] IEHC 274 and LE v Director of Public Prosecutions [2020] IECA 101 as supporting this approach.

45. The Court of Appeal delivered its judgment on the issue on the 19^th January 2024 (Kennedy J. - see People (DPP) v PB [2024] IECA 60). It concluded that s.93(1) was indeed clear and unambiguous, and was expressly limited to proceedings concerning a "child". A person who had reached the age of 18 was not a child. There was no provision for an extension where a person aged out during the proceedings.

46. The Court noted that before the amendment of the section, subs. (5) had clearly been needed to ensure that an appeal or a case stated from the Children Court was covered. However, in the Court's view, the amendment in 2006 had created something of an anomaly as between subs.(1) and subs.(5). Since subs.(1) now referred to "proceedings before any court concerning a child" it could be said that subs.(5) was somewhat superfluous although it had to be presumed that the words were there for a purpose. While subs.(5) did not expressly limit the application of the section to children, it had to be read with reference to subs. (1). The Court considered that the interpretation being put forward by the appellant would require the rewriting and extension of the language of the section to an unacceptable extent.

Submissions in the Appeal

47. The submissions address the policy objectives of the Act of 2001 and of s.93 in particular, the construction of the section, the case-law regarding the applicability of s.45 of the Act of 1961, the authorities concerning the Article 34.1° principle that justice must, save in "such special and limited cases as may be prescribed by law", be administered in public, and the jurisdiction of the courts to limit that principle in order to protect important personal rights.

Section 93 - policy

48. It is submitted by the appellant that the policy of the section is to preserve the anonymity and privacy of the child and to ensure that their wellbeing and development are not hindered by publicity. This, it is said, is in keeping with the objective of the Act - to foster the wellbeing and development of children into adulthood and to assist in their rehabilitation after their contact with the criminal justice system is over. Sections 96, 99, 158 and 258 are referred to in particular as exemplifying this objective.

49. The Director agrees that the object is to protect children but does not accept that the Act is concerned with their development when they become adults. She submits that the focus of the Act is on the child during childhood, and that the protections that it confers largely dissipate at adulthood.

50. The Attorney General submits that the purpose of the Act is to create a special system of criminal justice for juvenile offenders which includes procedural protections not available to adults. In devising that system, the Oireachtas drew distinctions based on the age of the person at the time when they appear before the court.

51. The Attorney General notes that while all the parties have, for the purposes of this appeal, accepted the proposition that the s.93 protection is life-long in the case of a person whose proceedings have concluded before they reach the age of 18, that proposition has never been argued and determined. Assuming it to be correct, he says that there may be a number of policy reasons for it. These include the oppressive effect on children if they knew that they could be identified once they reached 18 and the practical consideration that it might be difficult for media organs to know when the age would be reached.

52. The appellant also relies upon dicta from the judgments in Independent Newspapers v IA, DK v DPP and G v DPP [2014] IEHC 33 referring, in the context of debates about s.93, to the value of anonymity in the rehabilitation process.

53. Independent Newspapers v. I.A. was a case that, ultimately, turned on questions of fair procedures and the discretionary nature of judicial review relief, but it did involve consideration by the High Court of the parameters of s.93. It concerned a refusal by a Circuit Court judge to lift reporting restrictions in a case that had involved sexual offending by a person who was a child at the time of the offences, and when charged, but was over 18 when sentenced. Reporting restrictions were imposed when the matter first came before the court, not least because it was not clear at that stage whether or not identification of the accused would lead to identification of the complainant. The order continued to be in force on the date of the sentencing hearing, apparently because no application had been made by any party or by the press to lift it.

54. After the sentence hearing a number of the applicant's organs published reports that identified the accused, in the belief that because he had been convicted his identity was no longer protected by the Criminal Law (Rape) Act 1981 and he was not a child. The reports were inaccurate in significant respects, indicating that the respondent had been convicted of more serious offences than was the case, and he issued defamation proceedings. He also complained of breach of the court order.

55. The applicants then made their unsuccessful attempt to have the restrictions lifted by the trial judge. It does not appear from the judgment of McDermott J. that this application was made by reference to the provisions of s.93(2) of the Children Act (i.e. the public interest exception). The trial judge acknowledged that there had been an oversight, that had not been picked up by any party, but refused the application. Amongst other matters, she felt that the applicants had delayed making the application. Further, they had not put the two co-accused, who could be affected by the order, on notice of the application.

56. In judicial review proceedings brought by the newspapers seeking to quash the refusal, the respondent argued inter alia that he was entitled to the protection of s.93 throughout and after the criminal process unless circumstances arose in which the restriction could be lifted by order of the court. In his judgment McDermott J. noted that the section, when seen in conjunction with s.258 (the provision enabling the expunging of convictions in some circumstances), provided a young offender who was charged and sentenced before his 18^th birthday with "a significant statutory tool enabling him to rehabilitate and progress in life". The appellant emphasises this aspect of the analysis.

57. Conversely, the Director relies upon the fact that although McDermott J. thought it clear that the protection of s.93 lasted for life if the proceedings concluded before the accused reached 18, he was not satisfied that it could be extended beyond that age if the proceedings had not so concluded. While there might be good policy reasons for vesting in the courts a discretion to extend, there was no provision to that effect. He considered that the effect of the decision of this Court in Irish Times v. Ireland [1998] 1 IR 359 was that the only possible jurisdiction to restrict reporting would have been in circumstances where reporting would have rendered the trial unfair or would otherwise have violated some constitutional right. Since the trial had concluded, and since continued restrictions were not necessary for the purpose of preserving the complainant's anonymity, there was in his view no lawful basis for continuing the original order as of the date on which the application to lift it had been made to the trial judge. However, McDermott J. refused to quash the order because, inter alia, he found that the trial judge had appropriately exercised her discretion not to lift the order when the application was made to her.

58. The applicants appealed, and the respondent did not cross-appeal in respect of McDermott J.'s interpretation of s.93. The Court of Appeal took a slightly different approach to the question of discretionary grounds for refusal of judicial review relief but upheld the result on the basis that the applicants had not put the co-accused or the complainant on notice of their application to lift restrictions (see [2020] IECA 19). It could not be established that the trial judge had erred in taking into account the possibility that their interests would be affected. The Court stated that the right of those persons to fair procedures was "as integral an aspect of the administration of justice as the requirement that justice should be administered in public".

59. DK v. Director of Public Prosecutions and G. v Director of Public Prosecutions were both applications for orders for prohibition on the basis of prosecutorial delay, where part of the argument was that the delay had caused the accused to lose the benefit of anonymity because they were over 18 when charged. It is, of course, to be expected that in proceedings of that nature an applicant will emphasise what they say has been lost by the passage of time. It appears that in all of the prohibition cases to date the applicants, the Director and the courts have proceeded on the basis that anonymity under s.93 would not be available if the applicant had reached 18 by the date of charge. That is true of the leading authority in such cases, Donoghue v. Director of Public Prosecutions [2014] IESC 56, where a balancing test as between prejudice to the applicant and the public interest in continuing the prosecution was established.

60. In the instant appeal the appellant submits that the loss of anonymity appears to have been assumed in those cases rather than argued. He refers to Director of Public Prosecutions v. C. (see paragraphs 19 to 21 above) and submits that, applying the logic of that judgment, proceedings which are "concerning a child" do not cease to be such by reason only of the child reaching 18 during the currency of the proceedings. He says that publication of his identity at this stage would identify him as the "child concerned" in the trial, just as publication of the identity of a deceased child would identify them as the child against whom an offence was committed.

61. The Director submits that in the prohibition cases the focus has been on the significance of loss of anonymity as a factor in the assessment of the impact of prosecutorial delay. She says that this factor is immaterial here, where the appellant pleaded guilty. It cannot affect the fact that the Oireachtas chose not to extend the privilege to those over 18.

62. The Director and the Attorney General both argue that the C case concerned a different provision of the Act and is not of relevance to the interpretation of s.93.

Construction of the section

63. The appellant has focussed his arguments primarily on his own situation - that of an accused person who, having had the protection of s.93 in the trial court, reaches 18 before the appeal concludes. He refers to, but does not adopt, the possibility that the section could be interpreted as covering any proceedings concerning an offence that was committed by a child, regardless of the age of the accused when the matter is before the court.

64. With reference to the decision in Irish Independent v. I.A., the appellant observes that the effect of the analysis of McDermott J. is that an accused who turns 18 during a trial can be identified at that point. It is submitted that this would retrospectively identify the child accused in the proceedings. The appellant argues that the "proceedings" do not change character on the person's 18^th birthday. It is submitted that the statutory objective is to foster the rehabilitation of offenders who come into the criminal justice system as children. This is done in part through the operation of s.258, which, it is said, would be worthless to an individual who has already been publicly identified as a criminal.

65. The principal submission made on behalf of the appellant is that s.93(5) ("this section shall apply in relation to proceedings on appeal...") has the effect that the prohibition on identification continues into any appeal. The appellant says that it cannot be limited to cases where the accused remains under 18, since that situation would in any event be covered by s.93(1) ("in relation to proceedings before any court concerning a child"). Subsection (5) should not be regarded as surplusage. In this regard the appellant refers to the principle of statutory interpretation that words and phrases used in an Act are intended to have meaning and effect and should not be dismissed as surplusage unless not to do so would lead to absurd or nonsensical results.

66. The argument here is that where s.93(1) restrictions applied at first instance, subs.(5) is intended to apply those same restrictions to the appeal and it does not limit its effect to appellants who are children. The appellant relies upon the legislative history of the provision, insofar as it is noted that prior to amendment s.93(1) applied only to the Children Court, and s.93(5) applied to any appeal or case stated only from that court. As amended, the subsection fulfils the same function. If it is accepted that the protection conferred by s.93(1) lasts for life, then to read in an age-related limitation in respect of protection for appeals would be destructive of the first-instance protection, because it would inevitably remove the restrictions relating to reporting on that stage. It is submitted that such an interpretation would be internally inconsistent and self-defeating.

67. The appellant also submits that in such a scenario he would lose his statutory protection simply because he exercised his right to appeal. This would amount to impermissible discrimination as between him and a person able to have their appeal dealt with before reaching 18. This, he says, would infringe the equality guarantee of Article 40.1°. Reference is made here to the judgment of Hogan J. in McCabe v Ireland [2014] IEHC 435. The issue there arose from the activation of a suspended sentence imposed by the Circuit Court in an appeal from the District Court custodial sentence. If a suspended sentence was activated in the District Court, there would have been a right to appeal but no appeal was available where the sentence was suspended in that court and then activated by the Circuit Court in a District Court appeal. Hogan J considered that this was a breach of Article 40.1°. He also considered that the right of appeal was a fundamental norm safeguarded by the Constitution, such that a law which did not provide for a right of appeal against sentence imposed by a court of local and limited jurisdiction would not respect that norm.

68. The Director refers to authorities such as the recent decisions of this Court in Heather Hill Management Company v An Bord Pleanála [2022] IESC 43 and People (DPP) v. C. [2021] IESC 74 for the proposition that the primary reference point in an exercise in statutory interpretation is the words of the statute. It is submitted that the section here is plain and unambiguous and is not open to more than one interpretation. With reference to the judgment of Black J. in People (AG) v Kennedy [1946] I.R. 517 the appellant is accused of looking only at a small piece of the picture rather than at the whole canvas. It is said that the legislature's intent was to confine this section and the rest of the Act to children. The case is made that the interpretation of the word "proceedings" has a "dynamic" element, which depends on the age of the accused. The court must be dealing with a child under the age of 18 for the section to apply.

69. The purpose of s.93(5) is described as being to ensure clarity (in the absence of any definition of the word "proceedings") and to safeguard against the possibility that s.93(1) could be interpreted as excluding appellate proceedings. The Director sees the appellant's arguments as ignoring the relationship between subs. (5) and the other provisions. Further, the section refers only to a "child" and there is nothing to suggest that it covers a person who is not a child. It was open to the legislature to make provision for the case of a child who "aged out" during the proceedings but it did not.

70. It is accepted by the Director that the loss of anonymity might operate as a disincentive to the exercise of the right of appeal, but she submits that it does not negate or impede the right. She submits that the section has the benefit of the presumption of constitutionality and contends that the appellant is in the same position as any other person over 18 who is considering an appeal.

71. The Attorney General submits that s.93 is, on any view of its interpretation, an exception to the principle that justice must be administered in public. It must, therefore, be strictly construed. He submits that children's rights inhere in children, not in those who used to be children. On its plain wording the section applies only while the offender is still a child. The critical phrase is "proceedings before any court concerning a child". Restrictions apply, not because the offender was a child when the offence was committed but because they are a child when the matter is before the court.

72. It is submitted by the Attorney General that subs. (5) must be read in the context of the section as a whole. The subsection states that "This section shall apply...", meaning s.93. Section 93 applies to proceedings concerning a child. The subsection simply clarifies that the section continues to apply on appeal provided that the offender is still a child.

73. The distinction drawn by the Act, between those are still children when an appeal is dealt with and those in the position of the appellant, is said to be the consequence of a deliberate, rational and justifiable choice by the legislature, based on the view that adults do not require the same protection as children. This does not amount to an impermissible discrimination. The benefit of anonymity was never intended for adults. It is accepted that the Act is seen as conferring (at least potentially) life-long benefit if proceedings conclude while the child is under 18 - the Attorney General submits that this does not have to mean that there is an overarching principle or rationale in play, and says that legislative provisions sometimes represent a compromise.

Section 45 of the Courts (Supplemental Provisions) Act 1961

74. The appellant accepts that in a number of other cases doubt has been expressed about the applicability of s.45 in this context. In L.E. v Director of Public Prosecutions [2019] IEHC 471 Simons J. said that statutory exceptions to the constitutional imperative that justice should be administered in public must be strictly construed, both as to the subject matter and the manner in which procedures would depart from the standard of a full hearing in public. Where the Oireachtas had made express provision for restricting reports in defined circumstances and had not extended that protection to cases where the hearing took place after the child had become an adult, weight should be given to that legislative preference and the general provisions of s.45 could not be used to sidestep it. That analysis was approved by the Court of Appeal on appeal in L.E., as it had been in the earlier case of A.B. v Director of Public Prosecutions (unrep., 21^st January 2020).

Article 34.1 and Gilchrist orders

75. Under Article 34 of the Constitution, the administration of justice must take place in public, "save in such special and limited cases as may be prescribed by law". In Re R Ltd [1989] I.R. 126 Walsh J. described this as "a fundamental principle of the administration of justice in a democratic state". Similarly, Keane J. in the Irish Times case said that it was "an essential feature of a truly democratic society".

76. Although it was not dealt with in the courts below, the parties in the appeal have been asked to address brief submissions on the availability in this case of an order limiting reporting on court proceedings under the jurisdiction discussed in The Irish Times case and in Gilchrist v Sunday Newspapers Ltd [2017] 2 IR 284

77. In the latter case, the Court held that there was a continuing common law power to direct that a case be heard in camera, or to impose lesser measures such as reporting restrictions. Article 34.1 expressly contemplated circumstances in which the principle of trial in public could be departed from, insofar as provision could be made by way of legislation. However, the absence of any legislative measure in relation to a particular area meant that the court should only exercise an inherent jurisdiction to depart from a full hearing in public where it was shown that the interests involved were "particularly important", and the necessity was "truly compelling". Any departure from the principle of open justice under Article 34.1 must be exceptional, and therefore be strictly construed and applied. There must be no other measure available that would be sufficient to protect the legitimate interest involved. In a case where justice could not be done, or could not be done without damage to important constitutional values, it could be appropriate to provide for the possibility of a hearing other than in public. It was a matter for the court to decide whether any departure from the standard of a full trial in public was required, and if so, what measures were the minimum necessary.

78. The conclusions reached were summarised as follows.

(i) "The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance.

(ii) Article 34.1 itself recognises however that there may be exceptions to that fundamental rule;

(iii) Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public;

(iv) Any such exception may be provided for by statute but also under the common law power of the court to regulate its own proceedings;

(v) Where an exception from the principle of hearing in public is sought to be justified by reference only to the common law power and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing. [In the instant case] that demanding test is capable of being met by the combination of the threat to the programme and the risk to lives of people in it or administering it. This is not a matter of speculation, but seems an unavoidable consequence of the existence of a witness protection programme.

(vi) While if it can be shown the justice cannot be done unless a hearing is conducted other than in public, that will plainly justify the exception from the rule established by Article 34.1, but that is not the only criterion. Where constitutional interests and values of considerable weight may be damaged or destroyed by a hearing in public, it may be appropriate for the legislature to provide for the possibility of the hearing other than in public, (as it has done) and for the court to exercise that power in a particular case if satisfied that it is a case which presents those features which justify a hearing other than in public.

(vii) The requirement of strict construction of any exception to the principle of trial in public means that a court must be satisfied that each departure from that general rule is no more than is required to protect the countervailing interest. It also means that court must be resolutely sceptical of any claim to depart from any aspect of a full hearing in public. Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome. In particular this will mean that even after concluding that case warrants a departure from that constitutional standard, the court must consider if any lesser steps are possible such as providing for witnesses not to be identified by name, or otherwise identified or for the provision of a redacted transcript for any portion of the hearing conducted in camera."

79. The appellant in the instant appeal sees Gilchrist as demonstrating that on occasion the requirement for public administration may in appropriate circumstances have to give way to other pressing considerations such as the constitutional rights of individuals or the interests of justice generally. It is submitted that the Gilchrist principles may be used as an aid to the interpretation of a statute that, as in the case of s.93, provides for anonymisation or for restrictions on reporting.

80. The appellant also submits that if it were to be held that he is no longer covered by s.93 a grave injustice would be done to him, in that he would effectively be punished for exercising his right to appeal in circumstances where it had previously been understood that he would continue to be protected. The question as to the continuing application of the section did not arise until after the Court of Appeal had given its ruling on the jurisdictional issue. He also refers to the damage that, he says, would be done to his prospects for rehabilitation. In these circumstances, he submits that it would be appropriate to make an order limited to preserving his anonymity to the same extent as s.93.

81. The Director submits that, since the Oireachtas has enacted legislation dealing with anonymity vis-à-vis child offenders, the Court should not deploy a common law jurisdiction in a manner that would have the effect of side-stepping the legislation.

82. The Attorney General sees the effect of the Gilchrist analysis as being that any statutory provision that precludes or restricts publication in relation to court proceedings should be narrowly construed. In practical terms, this means that a statute should be read as having the effect of prohibiting or restricting publication only where it does so explicitly.

Discussion

83. As a preliminary, it is appropriate to mention certain other constitutional provisions. Article 38.1 of the Constitution guarantees that no person shall be tried on any criminal charge save in due course of law, while Article 40.1 guarantees that all citizens shall, as human persons, be held equal before the law. These guarantees apply to children as well as to adults. Article 42A, although primarily concerned with matters such as child care proceedings and adoptions, can be seen as expressly recognising the status of childhood.

84. Within these broad principles, the legislature must, of necessity, have a very broad margin of appreciation in creating procedures to deal with criminal conduct by children. To mention the most obvious point, the Constitution does not define childhood but leaves it to the legislature to determine as a matter of policy when the status, and any specific protections associated with that status, should be deemed to come to an end in various different contexts.

85. The Constitution does not, by the same token, prescribe any particular process or outcome for criminal prosecutions against children. Children are not immune to the criminal justice process and can be subjected to punishment. The point is that the guarantees of fair procedures and equality may, in the cases involving child defendants, justifiably be implemented by way of trial procedures that are adapted to accommodate at least to some extent (without compromising the fundamental principles according to which a criminal trial is conducted) certain relevant features of childhood.

86. There are several reasons why the law should extend particular protection to children rather than simply treating them as holders of rights, similar to but narrower in scope than those of adults. The weakness and vulnerability of children means that they require protection, such that, for example, the State must in some circumstances intervene in the authority of the family unit in order to protect the interests of a child.

87. Another reason to accord recognition to the status of childhood is the interest shared by society and the State in attempting to ensure that children grow to adulthood as integrated members of the community. As a matter of common knowledge, children in general simply do not have the level of ability to think ahead, understand consequences, make choices about their behaviour or control their own impulses in the way that would be expected of adults, and so it follows that they have a lesser culpability in respect of criminal behaviour. But it is also significant that because the personality is still in the process of development, children have a relatively greater prospect of rehabilitation. That is a matter of importance to the general community, and not just to the individual child.

88. These factors - the vulnerability of children, their lesser culpability, the societal interest in assisting their development and the greater prospect of rehabilitation– are central features of the modern criminal law as it relates to children. It will be seen that they are reflected in the Children Act 2001. This does not mean that in a criminal prosecution the interests and welfare of a child defendant should necessarily take primacy over other interests. The contrast with care proceedings or custody disputes is obvious - those processes are concerned primarily with the interests of the child, but a criminal trial involves a far more complex range of rights and interests. There is in each case the broad interest of society in the prosecution and punishment of crime. In most cases there will be one or more victims whose rights also have to be protected and vindicated, and those victims may in some cases be children themselves. The need to have regard to those other rights and interests may mean that it is inevitable that involvement in the criminal justice process can distress and sometimes even cause damage to a child defendant. That does not, in itself, necessarily involve a breach of individual rights.

89. As with any exercise in statutory interpretation, s.93 must be read in the context of the statute as a whole and having regard to the applicable constitutional principles.

90. I find it impossible to accept the argument put forward by the Director and the Attorney General to the effect that the interpretation of s.93 is plain and obvious. It seems to me that the meaning of the phrase "proceedings concerning a child" is certainly open to debate, and the effect of subs.(5) must be considered.

91. It will be remembered that as originally enacted s.93 applied only to proceedings under Part 9 of the Act before the Children Court, on appeal from that court or in a case stated. The deletion of the references to Part 9 and to the Children Court, and the inclusion of a reference to "any court" and undoubtedly have the effect of broadening the scope of the provision. This could have been done for a number of reasons. One is that the original version covered only trial procedures under Part 9, while there are many other provisions in the Act that can require the making of a court order. It would appear that, for example, judicial review proceedings in relation to such orders might not have been covered. Another possibility is that a lacuna was identified in respect of the new provisions inserted by the Act into the Child Care Act 1991 - they would not have been covered by s.31 of that Act. The term "proceedings concerning a child" is certainly apt to describe applications for care orders, where the child will not be a party.

92. The full scope of the provision does not fall to be determined here. I do not think, however, that the section could be construed as covering all forms of litigation and any case where a child might be involved, such as a personal injuries action. Reading it in context, it seems to me to be applicable to procedures and processes under the Act where these give rise to court proceedings. It is undoubtedly capable of applying to criminal trials and to appeals therefrom.

93. The next question, then, is the temporal extent of the protection afforded by s.93. The view taken by the courts that have considered the matter so far is that it lasts permanently if the proceedings conclude while the person is still a child, but lasts only until the day the person turns 18 if the proceedings are still in being. This is the interpretation favoured by the Director and the Attorney General. Other possibilities are that the protection expires at 18, whether or not the proceedings have concluded, or that it applies whenever the court is concerned with the actions of a child no matter what the age of the accused at trial, or that it lasts at least until the conclusion of the proceedings with the making of a final order, or that, if it is engaged at the commencement of the proceedings, it will continue indefinitely until or unless its requirements are dispensed with by order of the court. I will consider each of these separately, starting with the two at either end of the possible spectrum.

The protection lasts only until age 18, regardless of the status of the proceedings

94. No party in this appeal has argued for this interpretation. It might, however, be seen as the logical result of the view that the Act is intended for the protection of children only and does not confer anonymity into adulthood.

95. This is the position in England and Wales, as confirmed by the Court of Appeal in JC and RT. However, in my view there is little assistance to be gained from that judgment. While at first sight it is potentially persuasive, because the statute under consideration applied to children "concerned" in proceedings, it seems to me that the differences between that statute and the measure under consideration by this Court are simply too significant.

96. In the first place, the power to confer anonymity under the 1933 legislation involved in that case was a discretionary one, where the judge was obliged in effect to conduct a proportionality analysis. By contrast, s.93 is mandatory in its terms while allowing for dispensation in certain circumstances. Proportionality might arise as a factor in a decision to dispense with the requirements of the section, but not otherwise.

97. Secondly, and perhaps more importantly for present purposes, the provision dealt with in JC and RT applied to all forms of proceedings, civil or criminal, and to children concerned in proceedings in any capacity, be it defendant, victim or witness. It was for that reason that the EWCA felt that considerations relating to rehabilitation could not assist in the interpretation. This analysis is inapplicable to s.93, since firstly, in my view it does not apply to ordinary civil proceedings and, secondly, separate provisions (in s.252) deal with the position of child victims and witnesses. Further, s.93 must be read in the context of an Act which, throughout, lays heavy emphasis on the centrality of rehabilitation in the application of the criminal law to children. That does, in my view, feed into the question of interpretation.

Section 93 applies to any proceedings concerning a crime alleged to have been committed by a child

98. This view is possible if the phrase "concerning a child" is seen as covering any case where the actions of a child are in issue. In a criminal trial, the focus is always on a past event. The questions will be whether the person, when a child, committed an offence and if so what is the appropriate punishment. That would mean that a person prosecuted at any age in adulthood for their deeds when a child could avail of the statutory protection.

99. This interpretation might be seen as having a plausible policy rationale, in that it could be argued that an adult should not be publicly stigmatised for something they did before reaching mature adulthood. It does not, however, accord with the scheme of the Act and its focus on processes involving children. The great preponderance of those would be inapplicable to adults. An exception to this is s.258, where an adult may claim the benefit of the provision in relation to an offence committed in childhood, if the other criteria are fulfilled, but that situation comes about as a result of clear language and structure and not by implication. Further, most of the considerations that justify treating children differently to adults will not be relevant. It is therefore difficult to read the section as applying to a person brought before the court as an adult.

The section applies to a person who is a child when the proceedings commence, is capable of having indefinite effect but expires if the person reaches 18 before the conclusion of the proceedings

100. This is the interpretation put forward by the State parties. The chief difficulty that I have with it is that it requires the word "proceedings" to be given what has been called a "dynamic" interpretation. There is no doubt but that the section is engaged when a child is charged before a court - that is the commencement of the "proceedings". The charge, or charges, define the parameters of the proceedings. The questions in the proceedings will always be whether the child committed the offence(s) charged and if so what is the appropriate punishment.

101. It is possible, and indeed likely, that the great majority of cases brought against children are disposed of while they are still under 18. There will, however, be some cases where an accused child turns 18 while still at trial, or during any appellate stage. I cannot see that the nature of the proceedings changes with the occurrence of a birthday - the focus is still on the past event. During a trial, the question is still whether the offence was committed. If there is a conviction, and sentence must be considered, the fact that the offence was committed by a child will be central. In an appeal, the question will be whether, having regard to the evidence and legal rulings in the trial, the person was properly convicted. In my view, the "proceedings" are the same throughout and the word does not change meaning.

102. The interpretation also fails, it seems to me, to take due account of subs.(5). It will be recalled that the Court of Appeal thought that this provision, referring as it does to an appeal and/or a case stated, might be seen as superfluous because subs.(1) makes it clear that "any court" is covered.

103. There is a canon of statutory interpretation to the effect that the Court leans against finding that words used in legislation are surplus. This may be seen as having its strongest application where an Act is drafted as a single measure at the same time, where it may be inferred that every provision had some separate objective in view. Where the court is construing an amendment, this presumption may be weaker because it can be plausibly argued that at the point of the subsequent amendment, there was a desire to make minimal changes, and avoid disturbing anything unnecessarily. This can on occasion mean that there is an overlap, or indeed that a subsequent insertion may render an earlier provision redundant.

104. In this case the Court is dealing with an amendment. On balance, however, I do not think that the presumption is weakened in this case. That is because, as noted above, subs.(1) to (5) were all amended at the same time and I do not see that subs.(5) is any way redundant or superfluous. I read it as ensuring that if the section applied at the commencement of the proceedings it will continue to apply throughout those proceedings, including any appeal.

105. The second difficulty is that the interpretation is capable of producing significant disparities between young offenders in very similar situations. It is of course true that any age-based differentiation can result in distinctions that seem arbitrary and even unfair - that often cannot be avoided where the legislature confers protections or benefits on a specified age-group. The problem becomes exacerbated, however, in circumstances where the differing results may well come about by reasons entirely out of the control of an accused person, such as the availability of court dates, the length of time taken to deal with preliminary matters and unanticipated events during the trial.

106. Further, I agree with the appellant that this interpretation could serve as a significant disincentive to appeal. That much is accepted by the Director and the Attorney General. It seems to me to be possible that many teenagers would be reluctant to appeal, even when advised that there is a good appeal point, if they know that to do so will expose them to public reporting and thereafter to comment on social media. That disincentive is also capable of applying to the earlier stage of the proceedings, where a decision must be made whether to contest a charge or plead guilty. Conversely, it leaves a convicted child who has decided not to appeal still open to identification should the Director decide to lodge an application for a review of sentence on grounds of leniency, or an appeal on a point of law.

The section applies throughout the proceedings, including any appeal, but expires at the conclusion if the person has reached the age of 18

107. This interpretation would focus on the word "proceedings", and see the section as concerned only with contemporaneous reporting of those proceedings. It would have the effect that the section protects the accused from the pressures of publicity during the court process but becomes inapplicable once the proceedings have concluded.

108. It is an interpretation that would certainly give a layer of protection to the young person. However, this interpretation is, again, capable of creating significant disparities between young offenders, for example, co-accused who are a few months apart in age who commence proceedings with the same protection of s.93 and who go through the same trial process and, possibly, appeal process.

109. From a statutory interpretation point of view, I would see this interpretation as resting on a presumption that protection from stress, at the time of trial and sentence, is the sole objective of the section. Reading the measure in the context of the Act as a whole, it seems to me that such a presumption is incorrect, and that s.93 has an important role to play in furthering the rehabilitation of a young person. To repeat, children and young people have a greater prospect for rehabilitation and that fact is recognised throughout the Act. Protection from publicity can be a great assistance to the young person developing into young adulthood.

110. I should say here, however, that I would not see the relationship between s.93 and s.258 (which is undoubtedly a measure for the promotion of rehabilitation) as being particularly significant. This is because, as noted above, s.258 can apply in circumstances where the person was not charged until after reaching adulthood and will, therefore, not have been entitled to the benefit of s.93 while engaged in the criminal justice process.

Conclusions

111. I agree with the views of Simons J. and the Court of Appeal in respect of the question whether the jurisdiction under s.45 of the Courts of Justice (Supplemental Provisions) Act 1961 is available in this context. In referring to "minor matters" the section means matters concerning "minors" - that is, persons under the age of majority. This is a categorisation that has had significant meaning in certain areas of the civil law but has never been used in relation to the criminal law. I do not see it as relevant here, and the primary consideration must be the correct interpretation of s.93 of the Children Act 2001.

112. It seems to me that the courts that have previously considered this provision were correct in finding that, where it applies, its effects are capable of being permanent. That this is the position has also been accepted by the Attorney General and the Director of Public Prosecutions, albeit that in no case has the contrary been argued. I reach this conclusion because i) the section does not itself create any temporal limitation, ii) it provides a procedure for lifting the restrictions in the public interest, that will remain available after the person becomes an adult and iii) the potentially permanent effect has the optimum effect in terms of the statutory objective of the promotion of rehabilitation.

113. The issue between the parties is whether, notwithstanding that potentially permanent effect, the protection will expire if the person is still before the courts when they reach the age of 18. It seems to me that, for the reasons given above, this interpretation is capable of creating an unjustifiable difference in the treatment of young persons engaged in the court process and has the potential to inhibit their rights of defence and appeal to an unnecessary and possibly damaging extent. Furthermore, these consequences can arise as a result of pure happenstance. As already said, disparities and apparently arbitrary results can come about in relation to any age-based distinction, but I do not read the provision under consideration as requiring such a situation.

114. In my view, the proper construction of the section is that it applies when proceedings are commenced against a child, and continues to apply throughout those proceedings. Its effects last beyond the conclusion of the proceedings in so far as any publication or report relates to the proceedings and is likely to identify the person who was "the child concerned in the proceedings".

115. This reading seems to me to reduce the possibility of unequal and unfair treatment as between young offenders, and attempts to ensure that they are not subjected to additional, unjustified and unnecessary pressure and harm while involved in the criminal justice process. It has the further advantage of assisting the rehabilitation of the defendant when their involvement with the criminal process has concluded. That, it seems to me, means that it is also the interpretation that is most consistent with the principles and policies of a statute that lays such heavy emphasis on the rehabilitation of persons who commit crimes during childhood. To borrow the language of s.158, the objective is to promote reintegration of child offenders into society "and prepare them to take their place in the community as persons who are capable of making a positive and productive contribution to society".

116. In the circumstances it is not necessary to consider whether an order in the nature of a Gilchrist order would be appropriate.

Proposed order

117. I would allow the appeal, and grant a declaration that the terms of s.93 of the Children Act 2001 apply to the appellant in this case in respect of the proceedings before the Central Criminal Court, the Court of Appeal and this Court notwithstanding the fact that he reached the age of majority during the currency of those proceedings.

Effect of the decision in People (DPP) v. C.C. [2025] IESC 11

118. The appellant is currently serving a life sentence with a court review date. In view of the conclusions reached by the Court in the case of People (DPP) v CC, such a review cannot now be carried out. In CC's case, the Court has decided to allow the appeal and to consider remitting the matter for sentence in accordance with the principles set out in the judgment. It is, however, appropriate to give some consideration to the impact of the judgment on PB and on the rest of the very small cohort of young persons currently serving sentences of this nature who have not challenged them by way of appeal to this Court. As this issue has not been debated before the Court, I would propose that the parties in PB's appeal should be given some time to consider the CC judgment. In the meantime, I will indicate here my provisional views.

119. In People (DPP) v Finn [2000] IESC 75, [2001] 2 IR 25 this Court expressed a strong view that reviews by sentencing courts were an invasion by the judiciary of the power of commutation and remission conferred by the Constitution on the executive, and that the practice of ordering them should not continue. (The reasons why cases involving children took a different path are explained in the CC judgment.) The Court's observations on the issue were, however, expressly obiter and Keane C.J. made it clear that they were not to be taken as impugning the validity of such sentences "either because of the incorporation of review provisions or the manner in which such review provisions have been implemented or not implemented or the manner in which they may be implemented or not implemented in the future."

120. The situation now presenting itself differs from Finn, in that the Court has now clearly held that the review procedure is not permissible, and that decision will be binding on any court that has listed a case for review of sentence. Accordingly, on the face of it, a small number of persons, sentenced as children to a life sentence with a review, are now serving straightforward life sentences.

121. There is a general principle, exemplified in A. v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, that a person whose case has been finally determined may not rely upon a judicial decision that changes the law to reopen their case. As explained in the A judgments, the principle is not entirely rigid, and it permits of exceptions in the interests of justice. In particular, it will not apply to a person whose case is still before the courts even if that person has not previously sought to argue the issue that was the subject of the judgment (as in Wansboro v. Director of Public Prosecutions [2018] IESC 63). PB is in this latter position, and I would propose that so far as he is concerned the Court should look favourably on any application by him to extend the time within which to seek leave to appeal against his sentence. I would envisage that if leave is granted the matter might be remitted to the Court of Appeal for re-sentencing in accordance with the principles set out in CC.

122. As far as other persons in the category are concerned, it might be said that they have acquiesced in the error of the trial court in fixing a review date and/or the error of the Court of Appeal in affirming such an order, insofar as they did not seek to appeal to this Court. Further, it might be argued that their cases have been finalised in that Finn held that the "sentence" was imposed on the day that the trial court made the order that included a review mechanism. As against that, it could be argued that what was "acquiesced" in was an order providing for reconsideration of sentence by a court on a fixed date. That reconsideration has now been rendered unavailable. It is also arguable that what the Court was concerned with in Finn was the interpretation of the word "sentence" in s.2 of the Criminal Justice Act 1993, and the time limits within which the Director of Public Prosecutions had to bring an application before the Court of Criminal Appeal, rather than the concept of a "final order" as discussed in judgments like A. The fixing of a date for review of sentence certainly envisages the making of some further order on that date.

123. Without determining those issues, it can certainly be said at this stage that the effect of the judgment in CC is to take away from the sentencing court the possibility of carrying out the review of the sentence that it envisaged when imposing sentence. Those persons subject to a review would, in accordance with the warrant holding them in custody, be brought back to a court that would be constrained in exercising any further power in relation to the sentence it had imposed. As that was not the intention of the court and was not in the contemplation of the parties at the time of sentencing, and where the sentenced persons may be out of time for the bringing of an appeal in the ordinary manner, those sentenced persons ought to be given an opportunity to bring their cases back before the courts for the purpose of seeking a sentence in accordance with the principles outlined in CC.

124. Accordingly, my provisional view is that this Court should consider exercising its jurisdiction to extend the time within which to seek leave to appeal in such cases. If, in any such case, a person serving such a sentence has not already appealed to the Court of Appeal, it might be anticipated that the same principles would be applied by the Court of Appeal to an application for an extension of time. This, of course, would be a matter within the jurisdiction of that Court.

125. It may be that there are some persons who have already been released by a court in the course of a review. I do not suggest that they are somehow unlawfully at large, but note that they will, in all probability, not be permitted to challenge the validity of the sentence either by way of appeal or otherwise, should their cases come back before the courts. Such a challenge was not entertained in People (DPP) v Aylmer [1995] 2 I.L.R.M. 624, where the appellant had been released on a review after serving three years of a ten-year sentence. He reoffended, and the balance of the sentence was imposed. In his appeal he argued that the original order had been null and void. A majority of this Court held, without deciding whether or not such orders were valid, that he was estopped from making such an argument, since he had relied upon the presumed power of review for the purpose of obtaining release.

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecutions v P.B. (Approved) [2025] IESC 12 (13 March 2025) URL: http://www.bailii.org/ie/cases/IESC/2025/2025_IESC_12.html Cite as: [2025] IESC 12

Supreme Court of Ireland Decisions