CL v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Rory Mulcahy |
| Judgment Date | 20 June 2023 |
| Neutral Citation | [2023] IEHC 331 |
| Court | High Court |
| Docket Number | Record No.: 2022/388 JR |
[2023] IEHC 331
Record No.: 2022/388 JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr. Justice Rory Mulcahy delivered on the 20 th day of June 2023
In these proceedings, the Applicant seeks orders restraining his continued prosecution on one charge of violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act 1994 or, in the alternative, a declaration limiting the sentencing jurisdiction of the Circuit Court to that of the District Court.
The basis of the application is that the Applicant has been charged as an adult in respect of an offence alleged to have been committed when he was a minor. He contends that there was culpable prosecutorial delay in charging him in respect of the offence and that he has been prejudiced by this delay. In particular, he claims that he has lost the benefit of a number of statutory protections available to minors when charged with an offence.
The Applicant argues that the prejudice that he has suffered outweighs the public interest in the prosecution of offences and that accordingly it would be appropriate to prohibit his further prosecution. In the alternative, he argues that some of the benefit which has been lost due to the alleged prosecutorial delay should be made good by limiting the sentencing jurisdiction of the Circuit Court to those which might have applied had he been charged as a minor.
The parties have each identified a significant number of cases in which the principles established by the Supreme Court in Donoghue v DPP [2014] IESC 56; [2014] 2 IR 762 have been addressed. In that case, the Court prohibited the trial of the Applicant in circumstances where he was charged as an adult in respect of offences alleged to have been committed when he was a minor. The Court noted the importance of ensuring a speedy trial where an offence is alleged to have been committed by a minor:
“[27] The right to a speedy trial is a fundamental part of our criminal jurisprudence and requires no further elaboration here but the question of a special duty on the State authorities over and above the normal duty of expedition in the case of an offence alleged to have been committed by a child or young person merits some comment. Geoghegan J. in the passage cited above referred to the obvious sensitivities involved in respect of children or young persons coming before the courts. Those sensitivities are reflected in the Children Act 2001 by measures such as those relating to the juvenile diversion programme and those contained, inter alia, in s. 96 of the Act to the effect that a period of detention should only be imposed as a measure of last resort. It is undoubtedly in the interests of children and society as a whole that young offenders should be able to avail of the facilities of the juvenile diversion programme, where appropriate, and, so far as possible, to allow for early intervention with young offenders with a view to maximising the opportunity for rehabilitation. These aims cannot be achieved if there is avoidable delay in the prosecution of young offenders. For that reason, I am satisfied that for the purpose of considering whether or not there has been blameworthy prosecutorial delay in the case of a child or young person, one must take into account the special duty identified by Geoghegan J. in B.F. v. Director of Public Prosecutions [2001] 1 I.R. 656. However, it is important to emphasise that this duty is only one of a number of factors, including, inter alia, the seriousness of the offence and the complexity of the case, to be taken into account in considering whether or not there has been blameworthy delay in any given case. What may be excusable delay in the case of an adult in any given case may not be acceptable in the case of a child alleged to have committed such an offence.”
The Court set out the exercise which requires to be conducted in this type of case. First, there must be an assessment of whether there has been blameworthy prosecutorial delay. Where there is no such delay, then there is no basis for seeking prohibition. But establishing such delay is merely the first step:
“[52] There is no doubt that once there is a finding that blameworthy prosecutorial delay has occurred, a balancing exercise must be conducted to establish if there is by reason of the delay something additional to the delay itself to outweigh the public interest in the prosecution of serious offences. In the case of a child there may well be adverse consequences caused by a blameworthy prosecutorial delay which flow from the fact that the person facing trial is no longer a child. However, the facts and circumstances of each case will have to be considered carefully. The nature of the case may be such that notwithstanding the fact that a person who was a child at the time of the commission of the alleged offence may face trial as an adult, the public interest in having the matter brought to trial may be such as to require the trial to proceed. Thus, in a case involving a very serious charge, the fact that the person to be tried was a child at the time of the commission of the alleged offence and as a consequence of the delay will be tried as an adult, may not be sufficient to outweigh the public interest in having such a charge proceed to trial. In carrying out the balancing exercise, one could attach little or no weight to the fact that someone would be tried as an adult in respect of an offence alleged to have been committed whilst a child if the alleged offence occurred shortly before their 18 th birthday. Therefore, in any given case a balancing exercise has to carried out in which a number of factors will have to be put into the melting pot, including the length of delay itself, the age of the person to be tried at the time of the alleged offence, the seriousness of the charge, the complexity of the case, the nature of any prejudice relied on and any other relevant facts and circumstances. It is not enough to rely on the special duty on the State authorities to ensure a speedy trial of the child to prohibit a trial. An applicant must show something more as a consequence of the delay in order to prohibit the trial.”
As made clear in Donoghue and illustrated by the multiplicity of cases in which this issue has arisen, each case will turn on its own facts having regard to the alleged delay, the prejudice alleged and the public interest in the prosecution of the offence alleged.
Both parties provided a list of the relevant dates in the investigation and prosecution of the alleged offence which were largely consistent with each other. I have set out below the key dates from those chronologies:
02.06.2003 Applicant's date of birth.
23.08.2019 Date of alleged offence. Detective Garda Cogavin and Garda Burke attend incident and meet with injured party.
24.08.2019 Gardaí request CCTV footage.
28.08.2019 Injured party dies of suspected drug overdose.
29.08.2019 Detective Garda Cogavin attends Laboratory Tallaght Hospital and obtains blood samples in respect of the injured party.
Blood samples conveyed to Dr. Margaret Bolster.
Dr. Bolster carries out post-mortem on injured party.
D/Garda Cogavin receives requested CCTV footage.
31.08.2019 D/Garda Cogavin identifies CL and three others subsequently charged on CCTV footage.
02.12.2019 Applicant arrested by Garda Robert Nolan and interviewed in respect of this offence. No admissions were made.
25.01.2020 Garda Statement provided (Garda Robert Nolan)
03.02.2020 Medical report received in relation to the injured party.
10.04.2020 One of the three other individuals was detained and interviewed in relation to the offence. No admissions were made.
21.04.2020 Garda statement provided (Superintendent Brian Daly)
25.04.2020 Garda statement provided (Garda Conor Garland).
05.05.2020 Dr. Bolster's post-mortem report was issued to the Gardaí.
07.05.2020 Clarification report requested by Detective Garda Cogavin
14.05.2020 Another individual (a minor) was arrested and interviewed in respect of the alleged incident.
03.06.2020 Clarification report of Dr. Bolster.
12.10.2020 Garda statement provided (Garda Brian Fahy)
17.11.2020 Garda statement provided (Garda Marie Ruddy)
25.11.2020 Garda statement provided (Garda Robert Nolan)
17.12.2020 Another individual was arrested and interviewed in relation to the offence.
28.12.2020 Garda statement provided (Garda Conor O'Neil)
03.01.2021 Garda statement provided (Sergeant Gordon Madden)
09.01.2021 Garda statement provided (Garda Conor Garland)
10.01.2021 Garda statements provided (D/Garda Cogavin and Garda Aiden Gavigan)
11.01.2021 Garda statement provided (Garda Jamie Murtagh)
File prepared and forwarded to Juvenile Liaison Officer (JLO).
25.01.2021 Garda statement provided (D/Garda Cathal Connolly)
31.01.2021 Garda statement provided (Sergeant Peter Foley)
31.03.2021 Garda statement provided (D/Garda Fergus Burke)
20.04.2021 Garda Juvenile Liaison Officer deems Applicant unsuitable for inclusion in Juvenile Diversion Programme.
23.04.2021 File sent to the DPP.
02.06.2021 Applicant attains majority.
01.09.2021 The DPP directs a prosecution
06.09.2021 Applicant arrested and charged with offence of violent disorder
07.09.2021 A second individual was arrested and charged with the same offence.
13.09.2021 A third individual was arrested and charged with the same offence.
14.09.2021 A fourth individual was arrested and charged with the same offence.
22.09.2021 Applicant's first appearance in Court.
01.12.2021 Book of evidence served, and Applicant sent forward for trial to Circuit Court.
08.02.2022 Letter from Applicant's solicitor to the DPP seeking an explanation for the delay in his prosecution.
10.02.2022 Applicant appeared before Circuit Court.
25.02.2022 Letter from Applicant solicitor to the DPP.
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