Children’s Court: Trial of man who was a minor at time of offence must go ahead with safeguards

About this case:

• Judgment:
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Judge John O’Connor found that the delay in bringing the man’s case to trial was partly due to the prosecution but that the man was also at fault. Accordingly, the Court ordered that the trial should proceed with certain safeguards in place which would take into account the three year delay and associated age difference of the accused.

Chronology

In early 2014, SW was alleged to have committed an offence of assault, contrary to section 3 of the Non Fatal Offences Against the Persons Act 1977, and was arrested as a minor in autumn 2014.

In autumn 2014, the Garda Investigation was completed and in summer 2015 the Director of Juvenile Diversion Programme deemed that SW was not suitable for “inclusion” in its programme – thereafter the prosecuting Garda received instructions to proceed with the prosecution.

Throughout 2015 and 2016, the prosecuting Garda made a number of unsuccessful attempts to charge SW – mainly due to SW’s failure to co-operate and to attend the Garda Station on several specifically agreed times.

By the summer of 2016 the hearing under section 75 of the Children Act 2001 proceeded and the Court accepted jurisdiction. The case was then remanded for a separate date for a hearing concerning the issue of prosecution delay; in the meantime SW turned 18 prior to this remand date.

Delay and prejudice

Counsel for SW stated they were relying on the judgement of Donoghue v DPP 7 JIC 3006, and that except for the fact the Court has accepted jurisdiction under section 75 of the Children Act 2001, the delay and prejudice suffered by SW is analogous in this case.

Counsel urged the Court to dismiss the charges on the grounds that the delay constitutes a breach of the special obligation of the respondent to deal expeditiously with juvenile accused persons and has caused SW to lose the benefit of protections granted to juveniles.

The law

In his judgment, Judge John O’Connor set out the right to a fair trial as protected under article 38.1 of the Irish Constitution, a part of which is the right to a reasonably expeditious hearing as set down in State (Healy) v Donoghue IR 325, State (O’ Connell) v Fawsitt IR 362 and PM v Malone 2 IR 560.

Section 96 (1)(a) of the Children Act 2001 explicitly states that any court dealing with children charged with offences must have regard to “the principle that children have rights and freedoms before the law equal to those enjoyed by adults”, and there is a special duty on the State to expedite proceedings where children and young persons are involved.

Consequently, the Court accepted that delay in the hearing of proceedings presented a real risk to a fair trial as it may cause prejudice and impact upon SW’s defence.

The Court had to consider whether the delay reached a prohibitive level, referring to three cases which have stated in “considerable detail the approach to be taken when evaluating” this matter, namely: PM v Malone 2 I.R. 560, PM v D.P.P. 3 I.R. 172 and McFarlane v D.P.P. 4 I.R. 117.

After considering the Irish Constitution and relevant case-law in considerable detail, the European Convention on Human Rights, the UN Convention on the Rights of the Child (UNCRC), and the UN Standard Minimum Rules for the Administration of Juvenile Justice 1985; the Court emphasised the need for the State to expedite proceedings where young persons are involved.

Finally, the Court referred to JH v Director of Public Prosecutions IEHC 509 which identified the test for prosecution delay as “whether there is a real or serious risk that the applicant by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case”. Notably, it was also stated the delay on its own and an allegation of general prejudice based on such delay does not ground an application for prohibition.

Decision

The Court ruled that the issue of delay in bringing SW’s case to trial was substantially due to the prosecution up to the beginning of 2016 and thereafter the delay was substantially due to SW.

Despite the significant delay by the prosecution, the Court should enter into a balancing exercise as laid down by the Courts as to the duty to prosecute against any prejudice to SW.

The Court held that in the interests of justice the trial should proceed – but that in the event of a conviction or a plea of guilty, the issue of prosecution delay should be taken into account as a significant mitigation factor without prejudice to any other mitigation factors that SW may plead.

In the event of a sentence, the Court would also have to consider the issue of detention as a last resort noting the difference in age of SW at the date of the alleged offence

In addition, the Court made an order prohibiting the identity of SW under section 45 (1) of the Courts (Supplemental Provisions) Act 1961 thereby treating SW as a minor.