High Court: Juvenile prosecutorial delay application denied



The High Court has denied an application to restrain the further prosecution of criminal charges pending against an applicant, in circumstances where he was a minor at the time of the alleged offences, on the basis of prosecutorial delay.

Background

Matthew Dos Santos faces trial for the offence of robbery contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and an offence pursuant to s.11 of the Firearms and Offensive Weapons Act 1990. It is alleged that the offences occurred when Mr Dos Santos was 16 years old, and a child as defined by the Children Act 2001.

It is alleged that Mr Dos Santos produced a Stanley knife and threatening the complainant, saying “I’m gonna stab you, you’re getting it tonight”. The complainant said that he was in fear of his safety. The District Court declined to deal with the alleged offences summarily under s.75 of the Children Act 2001, and Mr Dos Santos has been sent forward for trial in the Circuit Court.

A period of almost two years passed in the investigation of the offence, and the investigation file went missing within An Garda Síochána.

Seamus Clarke SC, for Mr Dos Santos, contended that if the Garda investigation been conducted expeditiously, his client would have been entitled to have the charges against him determined in accordance with the Children Act 2001. He would have been afforded certain statutory entitlements such as anonymity and a mandatory probation report, and would have rights under s.96(2) of the Children Act 2001 which provides that a custodial sentence should be imposed upon a juvenile offender as a matter of last resort. As he had reached the age of majority prior to the trial of the offences, he no longer was entitled to these benefits.

Prosecutorial delay

Mr Justice Garett Simons was satisfied that the period of 22 months which elapsed in the case was excessive: “At almost every stage of the process, there was culpable delay on the part of the prosecuting authorities… the delay is inordinate and there is no justification for same. What should have been a straightforward investigation took far too long. The fact that the investigation file seems to have gone missing within An Garda Síochána for a significant period of time is especially concerning.”

Mr Justice Simons noted the judgment of Mr Justice George Birmingham, president of the Court of Appeal, in AB v Director of Public Prosecutions, unreported, CoA, 21 January 2020. The fact that the alleged offences occurred at a time when Mr Dos Santos had been a minor is something which will be taken into account by a sentencing court even in the absence of the direct applicability of s.96(2).

The court stated that Mr Dos Santos would be unlikely to have received a non-custodial sentence, if found guilty, even with the benefit of the sentencing principles under s.96. He had already received a number of convictions and was previously detained in Oberstown, and is currently in custody in Wheatfield Prison. Mr Justice Simons relied on the judgments in Smyth v DPP [2014] IEHC 642, Ryan v DPP [2018] IEHC 44, and Bernotas v Commissioner of An Garda Síochána [2019] IEHC 296, in finding that a further custodial sentence would likely be imposed, in the event of a conviction, even if Mr Dos Santos had the benefit of being tried as a child.

Mr De Santos argued that he also lost the benefit of reporting restrictions provided for in s.93(1). The judge said that s.93 must be read in conjunction with s.258, which allows for criminal offences of certain classes which were committed by a person while under the age of eighteen to be what might be colloquially described as “expunged” after a period of time. He noted that in cases of trials which attract publicity, there is a risk that an otherwise expunged criminal conviction would still be discoverable online through press reports. The loss of the reporting restrictions was described by the Court of Appeal in DPP v LE [2020] IECA 101 as a “significant disadvantage”.

Mr Dos Santos further alleged that he had lost the right to a s.99 mandatory probation report. Mr Justice Simons, citing RD v DPP [2018] IEHC 164 and Bernotas v Commissioner of An Garda Síochána [2019] IEHC 296, did not regard this as a particularly serious detriment in circumstances where the trial court would have a discretion to seek such a report regardless.

The judge found that the principal prejudice suffered by Mr Dos Santos as a result of the prosecutorial delay was the loss of the benefit of the s.93 reporting restrictions: “The other complaints made do not, to my mind, represent a real prejudice.” This disadvantage has to be weighed against other considerations, such as the seriousness of the offence alleged.

The offence of robbery is a serious one, carrying a maximum penalty of life imprisonment. Mr Clarke cited the Court of Appeal judgment in DPP v Byrne [2018] IECA 120 where a robbery committed by a juvenile offender, involving the grazing of the victim with a knife and a threat to kill the victim by the offender was given a headline sentence of four-and-a-half years.

Conclusion

Mr Justice Simons found that while there was blameworthy prosecutorial delay, the interests of justice outweigh any prejudice arising from the loss of the reporting restrictions under s.93 of the Children Act 2001. The balance of justice lies in favour of allowing the prosecution to proceed.

The application was denied.

© Irish Legal News Ltd 2020



Other judgments by Mr Justice Garrett Simons