About this case:

• Citation:
  [2026] IESC 7
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

Delivering judgment for the Supreme Court, Ms Justice Iseult O’Malley explained that the range of measures prescribed in the Children Act 2001 “is in part affected by the fact that children are generally less culpable for criminal behaviour than adults. This latter factor, however, cannot be said to be the dominant reason for the provision, such that the exclusion of an adult who was a child when the offence was committed is unfair.”

Background

On 15 April 2019, the appellant, then 17 years of age, was alleged to have entered a shop premises as a lookout while his co-accused, armed with a knife, demanded the worker to open the till. €300 in cash was stolen.

The appellant was later arrested and detained by gardaí on 19 February 2020. Thereafter, the investigating gardaí sent a file to the National Juvenile Office in August 2020. In the interim, the appellant had turned 18 in March 2020.

In August 2021, the appellant was deemed unsuitable for inclusion in the diversion programme and the file was referred to the DPP in December 2021. By the time the appellant was charged with robbery, he was nearly 20 years of age.

Given the appellant’s age, the discretion vested in judges of the Children Court by s.75 of the Children Act 2001 to deal summarily with any child charged with an indictable offence without the possibility of a “veto” by the DPP, was no longer applicable.

The DPP did not consent to summary trial and the appellant was sent forward for trial before the Dublin Circuit Criminal Court.

The appellant initiated judicial review proceedings, arguing that his exclusion from s.75 of the 2001 Act by virtue of his age was unconstitutional discrimination and/or was incompatible with the European Convention on Human Rights (ECHR).

The appellant sought a declaration that s.75 of the 2001 Act was contrary to articles 40.1, 40.3 and 42A of the Constitution and contrary to articles 6, 8 and 14 ECHR by reason of its exclusion of a person, alleged to have committed a crime as a child, who has turned 18 by the time the question of jurisdiction arises.

The appellant also sought an order of certiorari quashing his return for trial and an order restraining his continued prosecution, or in the alternative, an order limiting the sentencing jurisdiction of the Circuit Court to the lesser sentencing jurisdiction of the District Court.

Having been unsuccessful in the High Court, the appellant was granted leave to bring a leapfrog appeal to the Supreme Court.

The issues for the court were whether the exclusion of the appellant from the s.75 jurisdictional hearing, as a person alleged to have committed a crime when a child but who had turned 18 before jurisdiction was determined, amounted to impermissible discrimination contrary to articles 40.1, 40.3 and 42A of the Constitution, and if that exclusion was unconstitutional, whether s.75 was incompatible with articles 6, 8 and 14 ECHR.

The Supreme Court

At the outset of her analysis, Ms Justice O’Malley observed that “the key point here is that there is no constitutional right to summary disposal in the District Court, even in the case of minor offences”.

The judge explained that where the Oireachtas has determined that an offence may be dealt with summarily or on indictment and where the accused is an adult, the legislation usually confers the power of choice of jurisdiction on the prosecution authority, subject to the possibility that a District Court judge might refuse jurisdiction on the basis that the offence is not minor.

The court further recognised that where child defendants are concerned, s.75 operates to confine the choice of jurisdiction to the judge alone, subject to the right of the child to object.

Noting the appellant’s contention that the s.75 procedure is an acknowledgement of the reduced culpability and greater prospects for rehabilitation of the child offender, the court considered Doe & Ors v. DPP [2025] IESC 17, noting that the “the fact that an aged-out accused loses the opportunity for a s.75 decision was not, however, seen by the Court as a matter to be given any great weight in an application for an order of prohibition. The first reason identified for this view was that the High Court would not, in general, be well-placed to speculate about what the decision would have been.”

The court continued: “The second reason given in the judgment, with which the appellant has not really engaged, is that it was a particularly difficult matter to assess what the outcome of a s.75 hearing would have been without knowing whether the judicial review applicant intended to plead guilty or not.”

In that regard, Ms Justice O’Malley highlighted that the reason expressed in Doe was that the High Court could never assume that the Circuit Court would not impose the appropriate sentence.

Noting that an issue arose which was not disposed of in Doe, concerning the significance of the reference in subsection (2) of s.75 to “the age and maturity of the child”, the court proceeded to examine the meaning and purpose of s.75.

As to the context of the provision, the court observed that inter alia s.75 is concerned with the determination of the appropriate venue and mode of trial.

The court pointed out that when considering jurisdiction in the case of an adult, the judge will focus on the facts and gravity of the alleged offence but in the case of a child, “the section permits the judge to take account of an additional factor — the child’s capacity at that time to deal with the process of trial on indictment as opposed to summary disposal”.

Finding that the equality argument could not succeed, Ms Justice O’Malley considered that the appellant’s position differs to that of a child “in a number of significant, relevant ways by virtue of the fact that he has become an adult. Primarily, as far as s.75 is concerned, the differences are that an adult is assumed to be less vulnerable to the court process and that the range of sentencing options has changed irrevocably.”

Having regard to Musueni & Anor. v. Ireland [2024] IEHC 523, the judge explained that in the case of murder, s.2 of the Criminal Justice Act 1990 mandates that any adult convicted of murder must be sentenced to life imprisonment, but that the provision does not apply to children.

The judge outlined that in circumstances where the accused in Musueni had “aged out” and would, if convicted, receive a mandatory sentence for murder committed while under 18, “the statutory differentiation between the treatment of child defendants sentenced for murder and the treatment of aged-out defendants sentenced for murder committed while they were children was held to amount to unconstitutional discrimination contrary to the Article 40.1 guarantee”.

Distinguishing the case before the court, Ms Justice O’Malley reasoned: “A judge sentencing an adult for the offence of robbery, committed while the defendant was a child, is not only entitled but obliged to sentence on the basis that the offence was committed by a child.”

The judge continued: “Looking at the end of the court process, the Children Act provides the trial judge with a range of disposal options that are clearly designed for children. Their unavailability in respect of adults does not constitute discrimination against adults — they would be manifestly inappropriate for adults.”

Ms Justice O’Malley opined that while the processes in respect of determination of guilt and the appropriate sentence and the range of possible outcomes differ as between adults and children, “those differences are in my view manifestly geared towards the differences between adults and children appearing before the courts”.

The court further emphasised that “when a judge is imposing a sentence for an offence committed by a child, that fact will be central to the outcome. Both the gravity of the offence and the culpability of the accused are fixed by reference to the date of the offence, and do not increase as the accused gets older.”

Finally, the court concluded that European Court of Human Rights has never held that where an offence was committed by a child the same procedures applicable to child defendants must be followed no matter what the age of the accused person when appearing before the court.

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

Stuart Brophy v The Director of Public Prosecutions & Ors [2026] IESC 7