Bernotas v The Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 03 May 2019 |
| Neutral Citation | [2019] IEHC 296 |
| Court | High Court |
| Docket Number | [2018 No. 945 J.R.] |
| Date | 03 May 2019 |
[2019] IEHC 296
THE HIGH COURT
JUDICIAL REVIEW
Noonan J.
[2018 No. 945 J.R.]
AND
Prosecution – Delay – Public interest – Applicant seeking to prohibit respondents from further prosecuting him – Whether there was culpable delay
Facts: The applicant, Mr Bernotas, applied to the High Court seeking to prohibit the respondents, the Commissioner of An Garda Síochána and the Director of Public Prosecutions, from further prosecuting him in respect of a number of alleged offences committed when he was a minor. The applicant claimed that, as a result of prosecutorial delay, he had been deprived of the advantages that would have accrued to him had he been tried as a minor, thereby rendering his further prosecution unfair.
Held by the Court that there was no culpable delay in this case but even if there was, the public interest in prosecuting the applicant outweighed the prejudice to him as a result of the prosecution not proceeding during his minority. The Court was also satisfied that this challenge constituted an impermissible collateral attack on a previous unchallenged decision of the District Court and for that additional reason also must fail.
The Court held that the application would be dismissed.
Application dismissed.
In these proceedings, the applicant seeks to prohibit the respondents from further prosecuting him in respect of a number of alleged offences committed when he was a minor. The applicant is now of full age and claims that, as a result of prosecutorial delay, he has been deprived of the advantages that would have accrued to him had he been tried as a minor, thereby rendering his further prosecution unfair.
The applicant was born on 10th June, 1999.
25th February, 2016 – the applicant, then aged sixteen years eight and a half months, was a front seat passenger in a motor car being driven by Valerijis Vins which was stopped by the Gardaí on the M7 motorway northbound at or near Mountrath in Co. Laois. The Gardaí searched the vehicle and found an airgun under the front passenger seat. In the boot of the car, they found a holdall which contained an improvised explosive device known as a pipe bomb, a Glock pistol and a number of rounds of ammunition. The applicant and Mr. Vins were arrested and detained. The articles recovered together with the motor vehicle were removed by Gardaí from the scene for further examination together with a mobile phone in the applicant's possession.
On 26th February, 2016, in the early hours of the morning, on foot of a search warrant granted by the District Court, Gardaí conducted a search of the plaintiff's home. During the course of the same day, the applicant was interviewed on five occasions, with a further two interviews taking place on the following morning. Mr. Vins was also interviewed on multiple occasions over the same period. It emerged from these interviews that on the preceding Tuesday 23rd February, 2016, the applicant and Mr. Vins met with a third person who gave them instructions to travel to Limerick by car, collect the bag in question and deliver it to a location in Dublin.
The applicant eventually told the interviewing Gardaí that he thought he was collecting a grenade but was unaware of the Glock pistol or the ammunition. He said he purchased the airgun himself earlier that day. In these interviews, the applicant suggested that he was under compulsion to comply with the third party's instructions because of a drug debt owed by the applicant to the third party. He repeatedly refused to answer certain questions ‘for my own safety’.
The Gardaí established through their investigations that the meeting in question between the applicant, Mr. Vins and the third party took place at an Apple Green service station near Lusk in Co. Dublin on Tuesday 23rd February, 2016. In the weeks following the interviews, the Gardaí obtained CCTV footage from a number of locations. In late March, 2016, the Gardaí obtained CCTV footage from the Apple Green service station which showed the applicant and Mr. Vins meeting with a third person.
12th May, 2016 – the third person in the Apple Green video was identified as Jonathan Keogh, who was known to the Gardaí.
24th May, 2016 – Jonathan Keogh carried out what is described as the gangland assassination of Gareth Hutch, of whose murder he was subsequently convicted by the Special Criminal Court. Mr. Keogh fled the jurisdiction on the same date.
10th June, 2017 – the applicant attained his majority.
11th June, 2017 – Jonathan Keogh was arrested in the United Kingdom on foot of a European Arrest Warrant.
24th August, 2017 – Jonathan Keogh was extradited from the United Kingdom to Ireland.
13th September, 2017 – the Gardaí requested a warrant for the arrest of Jonathan Keogh for the purpose of interviewing Mr. Keogh in relation to the incident involving the applicant and Mr. Vins.
12th October, 2017 – the Gardaí applied to the District Court for the warrant which was granted.
23rd October, 2017 – Jonathan Keogh was arrested and interviewed by Gardaí on four occasions. He answered virtually every question put to him with ‘no comment’.
19th February, 2018 – statements from Gardaí involved in arresting and questioning Jonathan Keogh were completed.
4th April, 2018 – further Garda statements were made concerning Jonathan Keogh.
14th April, 2018 – the Garda investigation file was completed.
19th April, 2018 – the Garda file was sent via the State Solicitor to the Director of Public Prosecutions.
1st June, 2018 – a copy of the file was sent to the National Juvenile Office.
28th June, 2018 – the National Juvenile Office completed its assessment
31st July, 2018 – the Director of Public Prosecutions issued directions to charge the applicant and Mr. Vins.
27th September, 2018 – the applicant was arrested, charged and brought before the District Court on foot of four charges:
(a) Possession of an explosive device (pipe bomb);
(b) Possession of ammunition;
(c) Possession of a firearm (Glock pistol);
(d) Possession of a firearm (air soft gun).
1st November, 2018 – the matter again came before the District Court when the applicant applied to have the charges against him struck out on grounds of delay similar to those advanced in these judicial review proceedings. The District Court refused the application and this decision was not appealed.
12th November, 2018 – the applicant applied to this Court for leave to seek judicial review.
As can be seen from the foregoing, the most significant delay occurring in this case was a period of one year and three months from the time Mr. Keogh left the jurisdiction until his extradition back to Ireland.
In B.F. v. the Director of Public Prosecutions [2001] 1 I.R. 656, the Supreme Court recognised a special obligation of expedition resting upon the State in the prosecution of minors. The principle was explained by Birmingham J. (as he then was) in Donoghue v. Director of Public Prosecutions (Unreported, High Court, 29th January, 2013) :
‘It has long been recognised that there is a particular and special duty on State authorities to provide a speedy trial for a child or young person. That principle was first articulated in the Supreme Court decision of B.F. v. DPP [2001] 1 I.R. 656 where judgment was delivered by Geoghegan J. In the case of Jackson v. DPP and Walsh v. DPP, judgment of Quirke J. 8th December 2004, it was confirmed that the principle was of general application and not confined to sexual offences.’
This judgment was upheld by the Supreme Court (reported at [2014] 2 I.R. 762) where the court's unanimous judgment was delivered by Dunne J. who noted (at p. 782):
‘[49] The observations of Quirke J. as to society's interest in the speedy prosecution of young offenders are well made and reflect the policy behind the Children Act including the provisions for the diversion of young offenders from criminal activity, to which reference has been made earlier in the course of this judgment. Quirke J. concluded at pp. 18 and 19:-
“I take the view that where a criminal offence is alleged to have been committed by a child or a young person there is always a special duty upon the State authorities (over and above its fundamental duty), to ensure a speedy trial of the child or young person in respect of the charges preferred.”’
Dunne J. referred with approval to comments by the trial judge concerning the effects of delay in child cases, observing (at p. 783):
‘[53] The learned trial judge in the course of his judgment outlined a number of features that would have applied to Mr. Donoghue had he been prosecuted expeditiously which were no longer applicable given that Mr. Donoghue would be tried as an adult as opposed to a child. They included the loss of anonymity, the fact that s. 96 of the Act (to the effect that a sentence of detention should only be used as a last resort) would no longer apply and the loss of the mandatory requirement to obtain a Probation Report in the circumstances set out in s. 99 of the Act. …
It is appropriate to add that the special duty of expedition on the part of the State authorities in the case of offences alleged to have been committed by a child will be of benefit to the child offender but will also be of benefit to society as a whole if early intervention is effective in diverting the child away from crime. The potential benefit to the child offender and to society as a whole in diverting young people towards a crime free lifestyle will undoubtedly be diminished by delay.’
The court was however also at pains to point out that the presence of blameworthy delay did not of itself lead to an automatic right to have a trial prohibited. This is clear...
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