High Court: Woman who is alleged to have taken part in serious assault when she was 15 fails to halt criminal proceedings

About this case:

• Citation:
  [2019] IEHC 471
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The alleged incident

It is alleged that on 19 September 2015, the applicant, LE, who was 15 at the time, had an altercation with another young girl. A 17-year-old boy, the complainant, intervened – and LE is alleged to have shouted at him “I’m going to get you fucking sliced up”.

Later on, LE and a number of young males attacked the complainant, stabbing him numerous times. The complainant tried to run away, but was he was bleeding and the group caught up. The group proceeded to beat the complainant’s head and legs with a baton and a crutch, and the assault only ceased when a man came upon the scene and chased the group away.

The complainant suffered a number of serious injuries and had to spend over a week in hospital.

Six individuals, including LE and her brother, were charged with offences arising out of the alleged incident.

Timeline after the alleged incident

After the alleged incident, LE travelled to the United Kingdom. LE’s mother led the Gardaí to believe that LE had emigrated, however, LE returned in October 2015 and her mother did not notify the Gardaí of LE’s return. The prosecution submitted that the Gardaí only became aware of her return in May 2016. The new address at which LE was residing with her mother was only ascertained in August 2016, and thereafter LE was arrested and interviewed by the Gardaí.

In the meantime, the Gardaí had completed their investigation into all six suspected offenders within three months of the alleged incident, and the investigation file had been submitted to the DPP for directions in December 2015. In February 2016, the DPP indicated that it was not open to charge LE until she attended a juvenile diversion programme interview, as required under Part 4 of the Children Act 2001 (as amended).

LE failed to attend the required juvenile diversion programme interview in October 2016, and a formal a formal decision that LE was unsuitable for inclusion in the juvenile diversion programme was made in January 2017.

Six individuals, including LE and her brother, were charged with offences arising out of the alleged incident.

In April 2017, LE was charged with the following:

• (i) That contrary to Section 5 of the Non-Fatal Offences Against the Person Act 1997, LE without lawful excuse made a threat, intending the complainant to believe it would be carried out, to kill or cause serious harm to the complainant. 

• (ii) That contrary to Section 15 of the Criminal Justice (Public Order) Act 1994, LE committed violent disorder and that she used or threatened to use unlawful violence and such conduct, taken together, was such as would cause a person of reasonable firmness present at the said place to fear for his or another person’s safety. 

• (iii) That contrary to Section 3 of the Non-Fatal Offences against the Person Act 1997, LE assaulted the complainant causing him harm.

In July 2017, the Circuit Criminal Court made an order directing that LE’s trial be joined to that of other accused. The trial was scheduled for 5 December 2017, however this was delayed pending the outcome of the present judicial review proceedings. 

Judicial review proceedings

In the High Court, LE sought to restrain the further prosecution of criminal charges pending against her on the basis of prosecutorial delay.

Since the alleged offences were said to have occurred when she was 15-years-old and therefore a child under the Children Act 2001, it was contended that if the criminal investigation had been conducted expeditiously, LE would have been charged prior to her 18^th birthday and she would have been afforded certain statutory safeguards. Since LE has now reached the age of majority, she can no longer avail of most of the procedural protections under the Children Act 2001.

Mr Justice Simons said that for criminal offences alleged to have been committed by a child, there was a special duty on the state, over and above the normal duty of expedition, to ensure a speedy trial.

Setting out the various factors which may be put in the balance to outweigh the public interest in the prosecution of offences, Mr Justice Simons said the existence of blameworthy prosecutorial delay alone would not automatically result in the prohibition of a criminal trial. He said there were pockets of delay in the investigation in this case, but the effect of this was offset by the fact that an expedited trial date had been allocated – but for the present judicial review proceedings, this was fixed for a date just two years after the date of the alleged offences.

Mr Justice Simons also carried out “…de bene esse the balancing exercise required under Donoghue v Director of Public Prosecutions [2014] 2 I.R. 762”. He said the “principal factor in favour of allowing the prosecution to proceed” was that the alleged offences were very serious offences.

Mr Justice Simons said LE’s assertion that she would be prejudiced by the loss of the benefit of reporting restrictions under Section 92 of the Children Act 2001, was not sufficiently serious to tip the balance in favour of an order of prohibition. Mr Justice Simons also considered the submission that LE was suffering from poor mental health at the time of the alleged incident, and that the criminal prosecution would inevitably impose stress and anxiety, but he said that the “medical condition of an applicant would have to be wholly exceptional to justify an order of prohibition”.

Finding that the threshold had not been met, and the balance lay in favour of allowing the prosecution to proceed, Mr Justice Simons made an order dismissing the judicial review proceedings in their entirety.

• by Seosamh Gráinséir for Irish Legal News