High Court: DPP restrained from prosecuting assault committed by a 17-year-old due to prosecutorial delay

Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 326
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

The court was satisfied that there had been culpable delay in the prosecution of the proceedings and that the applicant had therefore lost several significant protections afforded to child offenders. As such, the court held that the balance of justice favoured preventing the prosecution rather than allowing it.

Background

The applicant, Mr Sean Furlong, was accused of assault in a Centra Shop in May 2017. It was alleged that, while stealing from the shop, he threw a glass bottle at the security guard. The bottle deflected off the security guard and hit an elderly lady, who sustained serious facial injuries. These injuries included a damaged cornea and extensive bruising and swelling.

At the time, the applicant had turned 17 within the same week that the offending took place. The gardaí attended the scene immediately and identified the two victims and an independent eyewitness. A statement was taken from the lady in July, seven weeks post-incident, to allow her space to deal with her injuries. However, a statement was not taken from the security guard until almost a year later.

There was then a three-month gap between the statement from the injured lady and making an appointment with the applicant’s mother for his arrest. This appointment was not kept. It transpired that the applicant was sentenced to eight months’ detention in Oberstown in October 2017.

The applicant’s detention required a warrant to be issued by the District Court in order for the gardaí to further investigate the matter. This was only done in February 2018. The gardaí also required further statements to be taken over the next three months to May 2018. As such, a file was only sent to the Garda Youth Diversion Office on 18 May 2018, after the applicant had turned 18 years old.

There were two counts of assault referred to the GYDO. The GYDO determined that the applicant was unsuitable for the juvenile diversion program, with those decisions being issued 14 and 17 months after the offending for the assault charges. As such, given the age of the applicant, he was sent forward for trial on indictment in the Circuit Criminal Court.

It was argued by the applicant that there was culpable prosecutorial delay in charging him with the offences, to the extent that he was deprived of the protections usually afforded to child offenders under the Children Act 2001. In particular, the applicant complained that he had lost the opportunity to have the matter dealt with summarily under section 75 of the Act, exposing him to a potentially longer sentence. He also argued that had lost his entitlement to anonymity.

High Court

In assessing the case, Mr Justice Anthony Barr began by outlining the key case law in the area. The court gave detailed consideration to the decision in Donoghue v. DPP [2014] 2 I.R. 762, in which the Supreme Court determined that there was a special duty to prosecute cases involving child offenders with reasonable expedition. The court identified in that case that a trial judge must first determine whether the authorities were guilty of culpable delay in the proceedings. Assuming that delay was held to have occurred, a court was required to engage in a balancing exercise to establish whether the prejudice to the accused was outweighed by the general public interest in the prosecution of serious offences.

The court also considered a number of other cases to exemplify certain scenarios of prosecutorial delay, including Cash v. DPP [2017] IEHC 234, SE v. DPP [2018] IEHC 264 and L.E. v. DPP [2020] IECA 101. The court also outlined the various statutory entitlements to which the applicant was denied as an adult, including the jurisdiction to deal with cases summarily, reporting restrictions and a mandatory probation report.

Applying the case law to the facts, the court determined that there was culpable delay on the part of the authorities in the case. The court noted that although it was a serious case, the investigation was not complex. The victims and witness were identified at the scene and there was no difficulty in identifying the applicant.

While the court accepted that the initial seven-week delay in interviewing the elderly victim was appropriate, the court said that the following three-month period of inactivity was unexplained. It was not clear why further action was not taken at this time. There was also no explanation of why the security guard and witness were not interviewed long before April/May 2018, nearly a year later.

The court held that the delay between October 2017 and February 2018 in detaining the applicant for questioning was not inappropriate. The court noted that this period of inactivity was largely due to the actions of the applicant himself, by first failing to keep an appointment for arrest and then being detained in Oberstown.

Mr Justice Barr was satisfied that, if the investigation had been carried out with reasonable expedition, the gardaí would have been in possession of the relevant witness statements prior to the questioning of the applicant. Had this been done, there was a very good chance that the matter could have been brought before the GYDO and the District Court before the applicant reached 18 years old.

As such, the court determined that there was culpable delay on the part of the gardaí in the case. The court then applied the balancing test to the applicant’s case. The court accepted that there was a reasonable prospect that the matter would have been dealt with on a summary basis in the District Court. Further, the court noted that the applicant would suffer significant prejudice by losing his right to anonymity, particularly because he would likely face serious impediments in seeking employment.

Conclusion

In light of these findings, the court granted an injunction restraining the DPP from prosecuting the applicant for the offences.