Diversion programme must reconsider case of student facing child porn charges

A High Court judge has ordered a reconsideration of a refusal to admit a male student, charged with sexually exploiting a child and having child pornograpy for distribution and sale, to the Garda Juvenile Diversion Programme.

The charges relate to alleged offences which took place when the applicant was aged 17 and therefore a “child” for the purposes of the Children Act 2001, Mr Justice Garrett Simons noted.

Under the programme, offenders who admit responsibility for their actions may, instead of being prosecuted, be subject to alternative measures including cautions and ongoing supervision.

In an important judgment concluding that decisions of the programme director are subject to judicial review, the judge quashed the refusal to admit the student to the programme.

He held that the programme director was not entitled to the more limited form of judicial review applicable to the Director of Public Prosecutions (DPP) for reasons including there would be no effective procedure in place to correct non-observance of the statutory criteria for admission to the programme.

That does not mean “open season” in respect of decisions of the programme director made under the relevant law — Part 4 of the Children Act 2001, he stressed. A court will not intervene unless an applicant meets the very high threshold of establishing the decision is unreasonable or irrational.

Obligation

He said that because the programme director’s decisions are amenable to judicial review, there is an obligation to provide reasons for those.

It was not possible to tell from the “inscrutable” decision whether the relevant director had so misinterpreted the legislation. The refusal to provide reasons frustrates the High Court’s supervisory jurisdiction and it would be “a serious error of law” to permit the director maintain this “Sphinx-like approach”.

While the court was told the programme is applied to certain aged-out offenders on a “concessionary” basis only, there was no sworn evidence to that effect, he noted.

He concluded the applicant is entitled to orders setting aside the refusals to admit him to the programme and to a reconsideration of the matter by a different programme director.

An order restraining the applicant’s prosecution remains in force but the DPP can apply to vacate that if the reconsideration does not result in the applicant being admitted to the programme. The DPP is bound by decisions of the programme director concerning such admissions.

The judge has imposed reporting restrictions, including restraining publication of anything that might identify the applicant or victim of the alleged offences and any details of the alleged offences except as set out in his judgment.

The proceedings were brought against the programme director and the DPP.

Exploitation

The applicant is charged with offences under the Child Trafficking and Pornography Act 1998 — sexual exploitation of a child; having child pornography for the purpose of distribution and sale; and having more than 500 images of child pornography.

The judge noted that the matter came to the attention of the Garda after the parents of a young male child made a complaint. It seemed that child had been engaged in exchanges on social media with an account holder who said they were an 11-year-old girl when it was the applicant, then aged 17.

The latter requested the child send certain pornographic images of themselves via the social media app.

Gardaí traced the social media account to an address at the applicant’s family home and searched there. He acknowledged the account was his and handed over devices and a phone held by him was found to contain more than 500 images of child pornograpy.

The applicant had indicated, through his solicitor, that he was accepting responsibility for his criminal behaviour and would consent to being cautioned and supervised. His parents secured a referral to a clinical psychologist whom he has since regularly attended and he is also attending college.

Some months after the search, during which he had turned 18, he was interviewed by two juvenile liaison officers who each reported he was unsuitable for the Diversion Programme. Having considered those, and submissions from the applicant’s solicitor, the programme director shared that view.