High Court: Applicant fails to prevent prosecution for offences committed as a child despite culpable delay by authorities

About this case:

• Citation:
  [2023] IEHC 384
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Miriam O'Regan

Delivering judgment in the case, Ms Justice Miriam O’Regan held that there was culpable prosecutorial delay in the case but determined that this did not tip the balance of justice in favour of restraining the prosecution. Amongst other things, the court noted that the applicant had come to the attention of gardaí since obtaining maturity so the loss of anonymity was not prejudicial.

Further, the two-year delay post-maturity did not place any additional prejudice on the applicant, the court said. As such, there was a general public interest in the case proceeding.

Background

In May 2017, a complainant alleged that the applicant, along with two other individuals, assaulted him. The complainant was left with a black eye, a split lip and a swollen head. A complaint was made to gardaí on the same day as the incident.

Inquiries were made as to witnesses and a statement was taken in August 2017. In October 2017, there was a referral to a juvenile liaison officer and, in the same month, a partial admission was made by the applicant.

One of the other individuals was admitted to the juvenile liaison programme in February 2018. In May 2018, a file was forwarded to a supervising sergeant which resulted in a direction to summons the applicant in June 2018.

The summons was applied for in July 2018 and successive summonses issued without being served. Ultimately, the applicant was charged with the assault offence in February 2021. Judicial review proceedings issued in April 2021.

The applicant submitted that he had been 16 years and four months old at the time of the alleged offence and that he had therefore lost the protections that he would have been entitled to under the Children Act 2001. These protections included the right to anonymity, the imposition of a detention sentence as a last resort and the availability of a probation report if a community sanction was considered appropriate.

It was outlined that the District judge had inquired as to the delay in bringing the prosecution and the prosecuting member had stated that the delay was not attributable to the applicant. It was submitted that the delay was difficult to comprehend as the applicant had been before the courts on several successive occasions and had been in custody for trial on unrelated offences since 2020. He was also serving a custodial sentence from March 2021.

The DPP submitted that the subsequent prosecutions of the applicant “seriously diluted if not eliminated” the right to anonymity in the case. The DPP also sought to explain the pre-charge delay on the ground that the investigating garda had been dealing with forty other investigations. It was further said that the DPP had difficulty serving the applicant at the address furnished to them.

High Court

Ms Justice O’Regan outlined that the total delay was three years and eight months from the offence, including 19 months between the date of the offence and the applicant attaining majority. The investigation was “relatively straightforward”, the court said.

The court was satisfied that there was a total pre-maturity delay by the authorities of approximately six-and-a-half months. This period included a two-and-a-half-month delay in forwarding the file to the prosecuting garda’s superior. There was also a four month delay attributable to the gardaí who did not identify the nature of efforts to locate the applicant for service after the summons issued.

While this delay may appear modest, the court emphasised that if the delay had not occurred it may have been possible for the matter to be dealt with in the Children Court.

The court then turned to consider whether the balance of justice favoured restraining the prosecution, in accordance with established case law. The court took a variety of factors into account, which included inter alia that the matter was to be dealt with on a summary basis in the District Court, that the applicant had not been prevented from getting on with his life as alleged, there was no evidence that the delay had impaired a fair trial and that the victim had an interest in the trial proceeding.

The court noted the general public interest in prosecuting alleged criminal offences. In respect of the loss of anonymity, the court noted that such loss was not so prejudicial or oppressive where the applicant had come to the attention of gardaí since obtaining maturity (see JS v DPP [2023] IEHC 275).

Further, the trial judge was required to consider the age of the applicant at the time of the offence in the event of sentence. The applicant’s partial admission was also taken into account.

Conclusion

The court concluded that, having regard to all the circumstances, the applicant had not established that the factors favoured a prohibition on the trial. As such, the court refused the application for judicial review.

Orobor v. The Director of Public Prosecutions [2023] IEHC 384