Court of Appeal: No prejudice or exceptional circumstances warranting anonymity or prohibition of criminal trial

About this case:

• Citation:
  [2023] IECA 252
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Delivering judgment for the Court of Appeal, Mr Justice George Birmingham stated: “I do accept that the loss of anonymity is a significant disadvantage. However, it is necessary to put in the balance against that the seriousness of the case… and the consequences therefrom. Also relevant is the fact that on one view, the appellant might be seen… to have been the instigator of the incident.”

Background

On 19 September 2015, a 17-year old male, KW, was assaulted and stabbed. It was alleged that the appellant and KW had an altercation earlier that evening when KW intervened in a dispute between the appellant and another young female.

The appellant was alleged to have threatened KW and, a short time later, she approached KW with her brother and a group of other young males, resulting in KW sustaining serious injuries. It was suggested that KW was severely affected by the incident, both physically and also having missed out on a US soccer scholarship.

The appellant was eventually charged with making a threat to kill and assault causing harm contrary the Non-Fatal Offences Against the Person Act 1997, and violent disorder contrary to the Criminal Justice (Public Order) Act 1994.

At the time of the alleged incident, the appellant was 15 years old, and considered a “child” under the Children Act 2001. The appellant alleged that if the criminal investigation had been conducted expeditiously, she would have been tried prior to her 18th birthday on 31 October 2017 and would have been entitled to statutory safeguards such as anonymity, and the possibility of having her charges dealt with summarily.

The District Court declined jurisdiction on the facts of the case, and the appellant’s trial was scheduled to be heard before the Circuit Criminal Court on 5 December 2017.

Judicial review proceedings were instituted on 24 July 2017 seeking to prohibit the trial. The matter was adjourned for hearing to 31 July 2017, and on that date the High Court granted leave to apply for judicial review.

On 28 November 2017, the appellant applied to vacate the criminal trial date of 5 December 2017, as one of her brothers had been murdered. The trial was then allocated a date of 18 February 2019, but this date was also vacated at the appellant’s request as she was pregnant and due to give birth, and she gave birth on 19 January 2019. On 22 May 2019, the appellant’s partner on the father of her child was also murdered.

As a result of various delays in pursuit of the judicial review proceedings, the criminal charges were further delayed until 2020, resulting in the appellant and her co-accuseds having to face charges some five years after the alleged incident.

The High Court

The gardaí explained to the High Court that delay had arisen where the appellant’s mother led gardaí to believe that the appellant had emigrated to England in late September 2015, whereas in reality she had returned from her short visit by 13 October 2015, a fact which the appellant’s mother did not notify to the gardaí.

The gardaí averred that the approach initially adopted was to seek a direction from the DPP to charge the appellant, which would then allow a European Arrest Warrant to be issued to seek the surrender of the appellant from the UK. The gardaí eventually were made aware of the appellant’s return in May 2016, and of the fact that she had moved to a new address, although the precise address was unknown. The appellant was then arrested on 8 August 2016.

Counsel for the appellant submitted that the appellant had a troubled background and had mental health difficulties, and that her vulnerable nature would be exacerbated if the prosecution were to proceed, citing AC v DPP [2008] 3 IR 398.

Having considered the evidence, the High Court found that there was no culpable prosecutorial delay, particularly where it was reasonable for gardaí to rely on the appellant’s mother’s contention that her daughter had emigrated, as her mother had cooperated with gardaí until that point.

The High Court disagreed that the appellant’s mental health issues were akin to those of the appellant in AC, finding that “whereas the prospect of facing a criminal prosecution will inevitably impose stress and anxiety upon an accused person, this cannot, of itself, be a reason to prohibit a criminal trial. The medical condition of an appellant would have to be wholly exceptional to justify an order of prohibition.”

Dismissing the judicial review proceedings, the trial judge refused the appellant’s request to direct that her trial be held “otherwise than in public” pursuant to s.45 of the Courts (Supplemental Provisions) Act 1961 and directed that as the appellant had since reached the age of 18, the title of the proceedings should be amended to reflect the appellant’s own name.

The trial judge restricted the reporting of any matter in the judicial review which would identify the appellant, as otherwise her right of appeal against his refusal to make an order pursuant to s.45 “would be rendered nugatory”.

The appellant submitted numerous grounds of appeal, in particular alleging that the trial judge erred in failing to find that the right to trial with due expedition was breached, and in finding that there were no exceptional circumstances which would warrant prohibiting the appellant’s trial.

The Court of Appeal

Mr Justice Birmingham stated that the leading case on prosecutorial delay is Donoghue v DPP [2014] 2 IR 762, in which the Supreme Court indicated that the first question to be determined by a court is whether there has been culpable prosecutorial delay, and where there has been such delay, the court must then carry out a balancing exercise.

The Court of Appeal considered that whilst the fact that the appellant was charged after her brother had no practical effect where they were to be tried on the same date, the applicant herself has prolonged the prosecution process.

Mr Justice Birmingham recognised that once the trial judge concluded that there had not been blameworthy prosecutorial delay, that was sufficient to dispose of the application for judicial review, but the High Court went on to consider the balancing exercise nonetheless.

Finding that the loss of anonymity was a significant disadvantage to the appellant, the court noted that this had to be balanced against the seriousness of the case, bearing in mind that the appellant could be seen to be the instigator of the incident.

Agreeing with the High Court that the appellant had made progress with her personal difficulties, Mr Justice Birmingham was satisfied that this was not a case where the interests of justice would be served by prohibiting the trial.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

Director of Public Prosecutions v L.E. [2023] IECA 252