A.C. (a minor suing by her guardian ad litem and next friend, Raymond McEvoy) v DPP

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date21 February 2008
Neutral Citation[2008] IEHC 39
CourtHigh Court
Docket Number[2007 No. 1026 JR]
Date21 February 2008

[2008] IEHC 39

THE HIGH COURT

[No. 1026 JR/2007]
C (A) v DPP
JUDICIAL REVIEW

BETWEEN

A C (A MINOR) SUING BY HER GUARDIAN AD LITEM AND NEXT FRIEND RAYMOND McEVOY
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

CONSTITUTION ART 38.1

COURTS (NO 3) ACT S1

PETTY SESSIONS (IRELAND) ACT 1851 S10

DPP v BYRNE 1994 2 IR 236

DPP v MCNEILL 1999 1 IR 91

DPP v ARTHURS 2000 2 ILRM 363

BYRNE v DPP 2005 2 IR 310

CHILDREN ACT 2001 S18

F (B) v DPP 2001 1 IR 656

C (P) v DPP 1999 2 IR 25

P (P) v DPP 2000 1 IR 403

JACKSON v DPP & WALSH v DPP UNREP QUIRKE 8.12.2004 2004/23/5293 2004 IEHC 380

M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006 IESC 22

H (S) v DPP UNREP SUPREME 2006 3 IR 575 31.7.2006 2006 IESC 55

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005 IESC 77 2005/8/1599

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

MCFARLANE v DPP & SPECIAL CRIMINAL COURT UNREP SUPREME 7.3.2006 2006/35/7440 2006 IESC 11

J (B) v DPP UNREP SUPREME 1.5.2007 2007 IESC 18

A (S) v DPP UNREP SUPREME 17.1.2007 2007 IESC 43

O'H v DPP UNREP SUPREME 28.3.2007 2007 IESC 12

K (J) v DPP UNREP SUPREME 27.10.2006 2006/30/6512 2006 IESC 56

Abstract:

Criminal law - Prosecution - Delay - Prosecutorial delay - Application to restrain further prosecution - Test to be applied - Exceptional circumstances - Applicant minor with mental health problems making her particularly vulnerable - Whether further prosecution should be restrained

Facts: the applicant admitted to gardaí that she had attempted to burn down her family home. Around the time that the respondent decided to apply for a summons charging her with that offence, she had been taken into care by the health services as a juvenile with mental health problems who posed a self harm risk. She applied for an order restraining the respondent from further prosecuting her on the grounds of prosecutorial delay. She submitted that the delay, in conjunction with the unusual features of her case, namely that she was a juvenile with mental health problems, entitled to her an order restraining the further prosecution.

Held by Ms Justice Dunne in granting the relief sought that the fact that the applicant had been in care for her own protection at the time the summons had been applied for was not a wholly exceptional circumstance, on its own, to justify the restraint of the prosecution. However, in conjunction with the fact that the case came before the court for the first time at the instigation of the applicant's solicitor as opposed to any step taken by or on behalf of the respondent and that the applicant had tried to kill herself on the last occasion the matter was before the court, it was such.

Reporter: P.C.

1

Ms. Justice Dunne on the 21st day of February 2008

2

The applicant herein is a minor who seeks an order in the nature of an injunction by way of application for judicial review restraining the respondent herein from taking any further steps in a criminal prosecution entitled The Director of Public Prosecutions (at the suit of Garda Martin O'Driscoll) and A C which proceedings currently stand adjourned before the Dublin Metropolitan Children's Court.

3

The grounds upon which the relief is sought are as follows:

4

i "(i) The respondent has failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in failing to expedite the prosecution herein.

5

(ii) The respondent by his conduct of this prosecution has violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the Constitution of Ireland 1937.

6

(iii) ....

7

(iv) The applicant has been deprived of her entitlement to reasonable expedition in the prosecution of the alleged offence and has thereby been deprived of her constitutional rights and in particular her right to a fair trial in due course of law.

8

(v) The applicant was 13 years and 3½ months of age at the time of the alleged offence on the 5 th December 2005. By the time this matter first came before a court on the 15 th February 2006 the applicant was 14 years and 5½ months of age. The applicant is a child who has been placed in the voluntary care of the Health Service Executive and has been identified with special needs. In the particular circumstances of the youth and vulnerability of the applicant the delay in the proceedings amounts to a breach of her constitutional rights and in particular her rights of a fair trial in due course of law.

9

(vi) In all of the circumstances the decision made by the respondent and/or his servants or agents to initiate the instant prosecution by way of summons pursuant to the Courts (No. 3) Act, 1986 as opposed to proceeding by a more expeditious route amounted to a breach of procedures.

10

...

11

(ix) The applicant is entitled to expect that summary criminal proceedings are conducted with all due expedition under the circumstances having regard to her entitlements pursuant to the Constitution and the European Convention on Human Rights. The delay in this case breaches those rights and entitlement.

12

...

13

(xii) The applicant as a vulnerable child with special needs has been prejudiced by the delay in this case and in those circumstances the prosecution should not be permitted to proceed having regard to her constitutional rights including those under Articles 38.1, 40.1, 40.3 and 42.

14

The background to this matter is set out in the verifying affidavit of Catherine Ghent, solicitor on behalf of the applicant.

Background
15

The applicant was born on the 26 th August, 1992. She is charged with arson of her family home on the 5 th December, 2005 in which some €15, 000 worth of damage was caused. The applicant was interviewed on the 5 th December, 2005 in the presence of her mother, Garda Ian Gillen and Garda Martin O'Driscoll. During the interview, the applicant admitted causing the fire with the intent of causing damage. The applicant at the time of issue of these proceedings resided at a High Support Unit, Co. Dublin. The applicant was first placed in the voluntary of the Health Service Executive (HSE) on the 15 th January, 1993. She was again placed in the voluntary care of the Health Service Executive on the 22 nd March, 2006 having been referred to the Social Work Department in October 2005. The solicitor for the applicant became aware of the alleged offence around the end of May 2006 having been notified of the matter by Garda Frances Ferris, a Juvenile Liaison Garda based at Dun Laoghaire Garda Station. A sequence of events then occurred which are set out in the submissions of the applicant and deposed to in the affidavit of Ms. Catherine Ghent, Solicitor for the Applicant. I do not propose to refer to the entire sequence of events but it would be helpful to refer in brief to that sequence.

16

1 st June, 2006 letter from solicitor to DPP seeking withdrawal of charges.

17

1 st June, 2006 application made for issue of summons to District Court office pursuant to s. 1 of the Courts (No. 3) Act, 1986.

18

7 th June, 2006 letter from solicitor to DPP seeking withdrawal of charges in light of civil detention of the applicant pursuant to order of the High Court made for the protection of the applicant.

19

12 th June, 2006 letter from DPP to solicitor indicating prosecutor would review position.

20

10 th July, 2006 letter from DPP to solicitor confirming prosecution to continue.

21

18 th September, 2006 letter form solicitor to DPP indicating that a hearing in the District Court on other charges results on a finding that doli incapax not rebutted.

22

Also reference to self harm after hearing.

23

4 th October, 2006 to 16 th October, 2006 correspondence between DPP and solicitor.

24

15 th February, 2007 the matter is listed in Dun Laoghaire Court at the behest of the solicitor for the applicant. (Summons never served on applicant). Adjourned to Children's Court for 19 th February, 2007.

25

19 th February, 2007 first listing in Children's Court. Issue of delay raised and case adjourned for consideration of jurisdiction to 13 th March 2007.

26

26 th February, 2007 letter from solicitor to DPP asking for case not to be continued for three stated reasons.

27

13 th March, 2007 jurisdiction accepted by District Court judge, issue of delay again raised and case adjourned for written submissions to the 19 th March, 2007.

28

11 th April, 2007 issue of delay decided against the applicant.

29

The issue of delay was heard by Judge Anderson sitting at the Metropolitan Children's Court at Smithfield on the 11 th April, 2007 as noted above. At that time some sixteen months and one week had elapsed from the date of commission of the alleged offence. Notwithstanding, Judge Anderson had refused the application to set aside the proceedings on grounds of delay, holding that a fourteen month delay from the commission of the offence to the first day in court was not a sufficient delay. An issue has been raised by Ms. Ghent in her affidavit as to the calculation of delay which it is contended on behalf of the applicant should be considered to be from the date of the commission of the alleged offence up to the date of the 11 th April, 2007 upon which date there was a first substantive hearing before the District Court as the previous hearing had been primarily for the determination of the issue of jurisdiction. I should say that this point that I disagree with that contention on behalf of the applicant and in my view the appropriate time for the consideration of delay is the fourteen month period from the date of the commission of the alleged offence to the first date in court. I cannot see how it could be said that the hearing in relation to jurisdiction was not a substantive hearing. Accordingly it seems to me that this court is concerned with a delay of approximately fourteen months.

30

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