Court of Appeal: Man who ‘aged out’ of Children Act protections due to delays can still be prosecuted

About this case:

• Citation:
  [2022] IECA 85
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Delivering judgment in the case, President George Birmingham held that the lost protections under the 2001 Act amounted to a “significant disadvantage”. However, the court determined that gravity of the offending and the public interest required the court to overturn the High Court order prohibiting the prosecution.

Background

In May 2017, the applicant entered a shop in Dublin with a gang of other young people. The applicant had just turned 17 the previous week. After being told to leave by a security guard for stealing, the applicant became aggressive. Eventually, he threw a glass bottle at the security guard.

The bottle hit the security guard and deflected into an elderly woman’s face. She suffered a damaged cornea and bruising from the incident. The applicant was identified as a suspect in the immediate aftermath of the assault.

However, it was only in August 2018 that the applicant was charged with assault causing harm to the woman. In December 2018, the applicant was charged with a second assault causing harm to the security guard. The applicant subsequently took judicial review proceedings seeking to prevent his prosecution on the grounds of culpable prosecutorial delay.

Immediately after the offence, gardaí had spoken to witnesses and viewed CCTV evidence. The applicant was arrested on the same day. The gardaí waited seven weeks before taking a statement from the female victim in July 2017. It was normal practice for the gardaí to wait so that an injured party could receive medical treatment and have time to process the events.

In early October 2017, the gardaí spoke with the applicant’s mother and an appointment was made for the applicant to attend Kilmainham Garda Station for interview. Neither the applicant nor his mother attended on the arranged date. Later in October, the applicant was sentenced to eight months’ detention in Oberstown.

The investigating garda was on a training course between mid-October and mid-November 2017. He became aware of the applicant being in custody and took steps to apply for a warrant under section 42 of the Criminal Justice Act 1999. That application was granted in February 2018 by the District Court. The applicant was interviewed a few weeks later.

A statement from an independent witness was taken in April 2018 and a statement was taken from the security guard in May 2018.

After turning 18 years old in May 2018, a file was forwarded to the Garda Youth Diversion Office (GYDO). In July and August 2018, the GYDO determined that the applicant was unsuitable for the Juvenile Diversion Programme in respect of the two offences. Finally, an investigation file was sent to the Director of Public Prosecutions in October 2018 and the applicant was returned for trial in February 2019.

The High Court took the view that there were unexplained periods of delay in the investigation and that there was a good chance the applicant would have been returned before the Children Court if the matter had progressed expeditiously. Accordingly, the applicant had lost protections under the Children Act 2001, which would have included the matter potentially being dealt with on a summary basis. The court noted that the Gardaí had significant information on the offences from the outset.

The High Court prohibited the trial due to prosecutorial delay and the DPP appealed to the Court of Appeal.

Court of Appeal

The court began by considering whether there had been prosecutorial delay in the case. The court noted that the High Court had determined that the gardaí some of the delays were culpable while others were not. The court stated that it was “inclined to step back and view the situation in the round”, because investigations did not always proceed at an even pace. There would be occasional periods of both heightened activity and inactivity in many cases.

The court stated that it would have been desirable to finish the investigation before the applicant became an adult, although the court recognised that this was not practical in many cases. Gardaí can have large caseloads and it was unreasonable to think that every guard could prioritise cases involving juveniles.

However, court held that the gardaí did not demonstrate that they were aware that the applicant was a juvenile about to attain majority. Accordingly, it did not appear that the investigation was conducted with necessary expedition to possibly have it dealt with before the applicant’s birthday.

The court agreed with the High Court that the investigation was not complex and noted that certain interviews could have taken place at earlier points. The court held that it was realistic that the investigation could have been completed by Halloween 2017, which would then have allowed the matter to be referred to the GYDO. The court recognised that this view contained a number of “what-ifs”, but stated that it strongly agreed with the High Court that blameworthy prosecutorial delay had occurred.

Next, the court considered the balancing exercise between the public interest in the prosecution of crime and the prejudice to the applicant (DPP v. LE [2020] IECA 101). It was noted that the applicant had “aged out” of the advantages that would have been available to him under the Children Act 2001. In particular, the applicant was deprived of a section 75 hearing and the proceedings would not be anonymised.

The court held that the combined loss of anonymity and a section 75 hearing amounted to a significant disadvantage. President Birmingham went on to state that the offending was very serious. The court referred to the witness statements and stated that it was “far from inevitable” that the District Court would have accepted jurisdiction.

Additionally, the non-attendance by the applicant at the appointment with gardaí was an important factor in the case and “far from being to his credit” that he failed to keep the appointment. The non-attendance added to the overall timetable of the investigation, the court said.

Conclusion

The court concluded that, while there was prosecutorial delay on the part of the gardaí, it was materially contributed to by the applicant. Having regard to the seriousness of the offending and the public interest, the court held that the prosecution should be permitted to proceed.

Furlong v Director of Public Prosecutions [2022] IECA 85