A.B. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 04 April 2019
• Neutral Citation: [2019] IEHC 214
• Court: High Court
• Docket Number: [2017 No. 637 JR]
• Date: 04 April 2019

[2019] IEHC 214

THE HIGH COURT

JUDICIAL REVIEW

Twomey J.

[2017 No. 637 JR]

BETWEEN

A.B.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Order of prohibition – Sexual assault – Prosecutorial delay – Applicant seeking the prohibition of his trial – Whether there was blameworthy prosecutorial delay

Facts: The applicant, aged 19, applied to the High Court seeking the prohibition of his trial for the alleged sexual assault of a girl of six years of age, when he was 15 years of age. The applicant argued that as a result of the delay between the date of the alleged offence and the date on which the applicant was charged with the alleged offence, he would have to face trial as an adult for an offence which he was alleged to have committed as a child. He argued that his right to a speedy trial as a child was breached due to blameworthy prosecutorial delay and that he had been prejudiced by virtue of the fact that he would be tried without being afforded the protections in the Children Act 2001, afforded to children who are prosecuted for offences.

Held by the Court that there was blameworthy prosecutorial delay and that the prejudice which resulted from the delay did not outweigh the public interest in the prosecution of the offence of an alleged sexual assault on a six year old girl.

The Court held that the order of prohibition would be refused.

Order refused.

JUDGMENT of Mr. Justice Twomey delivered on the 4th day of April, 2019

SUMMARY

1 This is a case in which the applicant, aged 19, seeks the prohibition of his trial for the alleged sexual assault of a girl of six years of age, when he was 15 years of age.

2 Since one of the protections which the applicant complains he has lost by virtue of the delay in his prosecution is the right of a child, under the Children Act, 2001 (the ‘Children Act’), to anonymity, this Court has taken some steps to anonymise this judgment and reduce any identifying details and so, inter alia, he is referred to as A.B.

3 The alleged offence occurred when the applicant was aged 15 years and 6 months and so he was two and half years away from his 18th birthday at that time. The applicant argues that as a result of the delay between the date of the alleged offence and the date on which the applicant was charged with the alleged offence, he will have to face trial as an adult for an offence which he is alleged to have committed as a child. He argues that his right to a speedy trial as a child was breached due to blameworthy prosecutorial delay and that he has been prejudiced by virtue of the fact that he will now be tried without being afforded the protections in the Children Act, afforded to children who are prosecuted for offences.

4 This judgment considers first whether there was blameworthy prosecutorial delay and if so, whether the prejudice which results from this delay outweighs the public interest in the prosecution of the offence of an alleged sexual assault on a six year old girl.

BACKGROUND FACTS

5 The applicant is a neighbour of the six year old complainant and it is claimed that he was in a bedroom of the complainant's house along with her younger brother at the time of the alleged offence. It is claimed that the complainant came down the stairs of her home on the date of the alleged offence and that there was blood coming from her vagina and that there were two small cuts either side of her vagina along with a bruise on the upper part of one of her legs. The clothes of the applicant were forensically examined and a bloodstain on his tracksuit bottoms was found to match DNA from the complainant. At paragraph 4 of the affidavit dated 16th October, 2018 of investigating Garda F he states:

‘The complainant said the applicant had touched her. When interviewed the complainant claimed the applicant put his finger up her ‘ninny’, later calling that part of body her ‘bum’. She said it was sore when it happened. [….] At the relevant time the applicant admits being in a room, believed by the prosecution to be an upstairs room in the complainant's house, with the complainant and a young brother of hers. The applicant denies doing anything to the complainant.’

6 The key claims made by the applicant at the hearing before this Court is that the delay in his prosecution means that he will be tried as an adult for an offence that is alleged to have occurred when he was a child and so will no longer benefit from the following provisions of the Children Act:

(i) Section 93 – that he is no longer entitled to the benefit of anonymity as a child defendant.

(ii) Section 96(2) – that he is no longer entitled to the provision that a sentence of detention should be imposed only as a last resort.

(iii) Section 99 – that he is no longer entitled to the provision mandating the obtaining of a probation report where a court is of the opinion that the appropriate sanction is detention.

7 It is proposed first to consider the relevant law and then to analyse the facts of this case in light of the prevailing law.

LAW

8 The leading case on delay in prosecution of offences committed by children is the Supreme Court case of Donoghue v. DPP [2014] 2 I.R. 762. This case involved an application for the prohibition of the trial of a person who was 16 years of age at the time of the alleged offence of possessing heroin. That case concerned the finding of a quantity of heroin at the home of the applicant and significantly the applicant admitted responsibility for it. The Supreme Court prohibited the trial of Mr. Donoghue on the grounds of the delay in his prosecution which would have led to his being tried as an adult for an offence which had allegedly occurred when he was a child. The legal principle that there is a special duty owed to children in the prosecution of criminal offences is summarised by Dunne J. at 784:

‘The special duty of State authorities owed to a child or young person over and above the normal duty of expedition to ensure a speedy trial is an important factor which must be considered in deciding whether there has been blameworthy prosecutorial delay. That special duty does not of itself and without more result in the prohibition of a trial. As in any case of blameworthy prosecutorial delay, something more has to be put in the balance to outweigh the public interest in the prosecution of offences. What that may be will depend upon the facts and circumstances of any given case. In any given case, the age of the young person before the courts will be of relevance. Someone close to the age of 18 at the time of an alleged offence is not likely to be tried as a child no matter how expeditious the State authorities may be in dealing with the matter. On the facts of this case, had the prosecution of Mr. Donoghue been conducted in a timely manner, he could and should have been prosecuted at a time when the provisions of the Children Act 2001 would have applied to him. The trial judge correctly identified a number of adverse consequences that flowed from the delay. Accordingly, I am satisfied that the trial judge was correct in reaching his conclusion that an injunction should be granted preventing the DPP from further prosecuting the case against Mr. Donoghue. Therefore, I would dismiss the appeal.’

9 Thus, it is clear that in this case there are two steps to be considered, first, whether the prosecution is guilty of blameworthy delay and, if so, is the public interest in this case of prosecuting an offence of sexual assault against a six year girl outweighed by the prejudice that would be suffered by the applicant due to his loss of the protections of the Children Act.

10 It is now proposed to analyse the facts in light of the relevant law.

ANALYSIS OF DELAY

11 The applicant was born in April 1999. In October 2014 a complaint was made by the mother of the six year old girl to the Gardaí that her daughter had been molested by the applicant. In March 2015, the applicant was arrested and interviewed and he gave consent for swabs to be taken for the purposes of DNA analysis. There is no complaint made by the applicant of any delay regarding this, the first part of the investigation. His complaints regarding delay concentrate on three periods which are set out hereafter.

(I) Time incurred in inputting on Pulse system

12 The applicant complains that while a juvenile referral to the Juvenile Liaison Office was created on the Garda computerised information system (the ‘Pulse system’) on the 3rd March, 2015 it took until the 24th July, 2015, a period of 20 weeks, to input an offence code into the Pulse system to allow the referral progress to the Garda Youth Division Office (‘GYDO’), which deals with the Juvenile Diversion Programme. In this regard, it is important to note that section 18 of the Children Act requires that:

‘any child who has committed an offence and accepts responsibility for his or her criminal behaviour shall be considered for admission to a diversion programme’.

13 As is clear from the judgment of Dunne J. in Donoghue v. DPP it is therefore a necessary step in the prosecutorial process, that an assessment be made of whether a child who is alleged to have committed an offence is suitable for admission to the Juvenile Diversion Programme. It is also clear from this judgment that some delay will be necessary in the prosecution of children by virtue of the need to consider their suitability for the Juvenile Diversion Programme. At p. 770 she states:

‘The [Children Act] contains provisions at ss. 17 to 51 in relation to the juvenile diversion programme aimed at preventing young offenders from entering the normal criminal justice system. It is part of the policy underpinning the Children Act 2001 that children should be kept out of the criminal justice system where possible; obviously, some time will be taken in assessing whether an individual is suitable for diversion to the juvenile diversion...