C. [a minor] -v- D. P. P., [2008] IEHC 39 (2008)

Docket Number:2007 1026 JR
Party Name:C. [a minor], D. P. P.
Judge:Dunne J.
 
FREE EXCERPT

THE HIGH COURT

JUDICIAL REVIEW [2007 No. 1026 JR]BETWEENA C (A MINOR) SUING BY HER GUARDIAN AD LITEM AND NEXT FRIEND RAYMOND McEVOYAPPLICANT AND

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT JUDGMENT delivered by Ms. Justice Dunne on the 21st day of February, 2008

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.

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

(iii) ….

(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.

(v) The applicant was 13 years and 3½ months of age at the time of the alleged offence on the 5th December 2005. By the time this matter first came before a court on the 15th 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.

(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. …(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. …(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.

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

Background

The applicant was born on the 26th August, 1992. She is charged with arson of her family home on the 5th December, 2005 in which some 15,000 worth of damage was caused. The applicant was interviewed on the 5th 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 15th January, 1993. She was again placed in the voluntary care of the Health Service Executive on the 22nd 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.

1st June, 2006 letter from solicitor to DPP seeking withdrawal of charges.1st June, 2006 application made for issue of summons to District Court office pursuant to s. 1 of the Courts (No. 3) Act, 1986.

7th 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.

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

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

18th 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.Also reference to self harm after hearing.4th October, 2006 to 16th October, 2006 correspondence between DPP and solicitor.

15th 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 19th February, 2007.19th February, 2007 first listing in Children's Court. Issue of delay raised and case adjourned for consideration of jurisdiction to 13th March 2007.

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

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

11th April, 2007 issue of delay decided against the applicant.The issue of delay was heard by Judge Anderson sitting at the Metropolitan Children's Court at Smithfield on the 11th 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 11th 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.

On the basis of the delay complained of herein it is averred that the applicant's right to a fair trial in due course of law has been irreparably compromised and she is thereby prejudiced. Counsel on behalf of the applicant very properly and fairly conceded that this is not a case where actual prejudice is alleged.

In the course of the affidavit grounding this application, Ms. Ghent went on to outline certain matters in relation to background of the applicant. At the time of swearing her affidavit on the 30th July, 2007 the applicant was the subject of ongoing proceedings in the High Court in the "Minors" list, in proceedings brought by the Health Service Executive in which the applicant is a defendant represented by the guardian ad litem herein and by Ms. Ghent as her solicitor. The applicant has had an extremely troubled background which is referred to in Ms. Ghent's affidavit. The applicant most recently came to the attention of the Health Service Executive in October 2005. At that time the applicant was engaging in self harm and other adverse behaviour. The applicant was placed in a number of residential and foster placements by the Health Service Executive all of which broke down. An application was made on the 8th June, 2006 to have the applicant detained for her own safety. The application was granted.

Ms. Ghent also averred to the fact that the...

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