D.K. v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 24 May 2023
• Neutral Citation: [2023] IEHC 273
• Court: High Court
• Docket Number: [Record No. 2022/80 JR]

Between

D.K.

Applicant

and

Director of Public Prosecutions

Respondent

[2023] IEHC 273

[Record No. 2022/80 JR]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered on the 24 ^th day of May, 2023 .

Introduction.

1 . This is an application by way of judicial review, whereby the applicant seeks, inter alia, an injunction restraining his continued prosecution by the respondent on one charge of money laundering, contrary to ss. 7(1)(a)(ii), 7(1)(b) and 7(3) of the Criminal Justice (Money Laundering & Terrorist Financing) Act, 2010, on grounds of delay.

2 . In particular, the applicant asserts that from the date of the alleged offences the respondent was on notice that the applicant was a minor, and due to blameworthy prosecutorial delay by the gardaí and the respondent, the applicant has been deprived of the statutory protections afforded to him under the Children Act, 2001 (hereinafter “the 2001 Act”), by virtue of the fact that he reached the age of majority prior to being charged.

Background.

3 . The prosecution in question is currently pending before the Circuit Criminal Court in Wicklow. It arises out of incidents alleged to have occurred on a date between 22 ^nd April, 2019 and 30 ^th April, 2019 when the applicant was 16 years and 3 months.

4 . The applicant had a bank account with AIB Bank, the phone number attached to the account being that of his mother. Sometime in or around 16 ^th April, 2019, the applicant connected with an account by the name of ‘MoneyMake’ on social media, which was not known to him previously. The person or persons behind this account messaged him and asked for his bank account details in order to lodge money into the account, indicating that the applicant would receive 30% of the monies lodged into the account, in exchange for withdrawing the money from post offices.

5 . The applicant stated in his interview with the gardaí, that two weeks later, on 30 ^th April, 2019, those who controlled the social media account telephoned the applicant. They told him that monies had been lodged into his account. The applicant stated that roughly €6,800 had been lodged into his account.

6 . Three men, presumably those in control of the ‘MoneyMake’ account, collected the applicant from school on 30 ^th April, 2019, in order to have him withdraw the monies from his account. They drove him to three different post offices and the applicant attempted to withdraw the monies from his account. He was successful in withdrawing £2,000 from one of the post offices. The applicant outlined that when he was unable to withdraw money at the other post offices, the three men realised that the card was no longer functional. The applicant stated that the three men took his bank card at that point, and he returned to school.

7 . On 30 ^th April, 2019, the applicant's mother received a text message from AIB Bank, asking her to confirm a withdrawal from the account of the applicant to the value of €2,387.49 with a ‘Y’, confirming the withdrawal was the applicant, or an ‘N’, refusing the transaction. The applicant's mother, unaware of the scheme as arranged with the ‘MoneyMake’ social media account, was of the view that there were not sufficient funds in the applicant's account to satisfy this transaction; therefore, she replied to the text message with an ‘N’, indicating that the transaction should be declined. AIB Bank then informed the applicant's mother that the card had been placed on hold.

8 . It appears from the reports exhibited in the book of evidence provided by the gardaí, that other amounts varying between €4,315.45 and €8,000 were both lodged and withdrawn from the account of the applicant on different occasions. The applicant denied any knowledge of those transactions, at interview with the gardaí.

9 . On 1 ^st May, 2019, the applicant and his mother attended Blessington Garda Station and informed Garda Andrew Curry of unusual activity occurring on the AIB Bank account of the applicant. The applicant made admissions to the gardaí as to how the monies had been lodged and withdrawn from his account, as set out above. The applicant's mother also provided a statement to the gardaí.

10 . On 2 ^nd May, 2019, the gardaí were granted an order pursuant to s. 63 of the Criminal Justice Act, 1994 directing that information relating to the applicant's account held by AIB be given to the gardaí. On 3 ^rd May, 2019, the applicant's phone was given by Garda Curry to Wicklow Garda Station for forensic examination. This examination was completed on 7 ^th June, 2019 and confirmed a large number of transactions on the applicant's bank account, on 30 ^th April, 2019.

11 . On 9 ^th September, 2019, the gardaí received information from AIB, as to the movements on the applicant's account, having made enquiries of AIB in that regard on 30 ^th July, 2019.

12 . On 21 ^st October, 2019, Garda Curry requested that he be given assistance from a colleague, who was familiar with fraud investigations. On 23 ^rd October, 2019, Detective Garda Whelan was assigned to the applicant's investigation file. Detective Garda Whelan made further enquiries of AIB on 6 ^th December, 2019, to which, AIB responded to with further information on 23 ^rd December, 2019.

13 . In his affidavit, Garda Curry averred that from January to March 2020, he was involved in the rollout of a new investigation management system in the Wicklow division and that from March 2020 to July 2020, all investigations were on hold due to the onset of the Covid-19 pandemic.

14 . On 15 ^th July, 2020, the applicant and his mother met with the gardaí by arrangement. The applicant was arrested pursuant to s. 4 of the Criminal Law Act, 1997. He was detained and interviewed, at which interview he made further admissions as to the events which occurred on and around 30 ^th April, 2019.

15 . On 23 ^rd July, 2020, a youth referral file was created on behalf of the applicant. After some delays, wherein the National Juvenile Office requested further information from the gardaí on two separate occasions, the applicant was deemed unsuitable for inclusion in the Garda Youth Diversion Programme (hereafter “GYDP”), on 15 ^th March, 2021.

16 . The applicant had attained his majority on 1 ^st February, 2021.

17 . On 10 ^th September, 2021, the DPP gave directions concerning the prosecution of the applicant.

18 . The applicant was charged on 14 ^th October, 2021 at Naas District Court. Sgt. Jacob informed the court on that date that the DPP had directed summary disposal of the matter and gave a brief outline of the facts of the case. Judge Zaidan refused jurisdiction to hear the matter, determining the offence to be non-minor in nature.

19 . The applicant was remanded on bail to 25 ^th November, 2021 for service of the book of evidence. The book of evidence was served upon him on that date and he was returned for trial on bail before Wicklow Circuit Criminal Court on 1 ^st March, 2022.

Chronology.

20 . It is necessary to set out a chronology of the charge against the applicant in order to assess the delay in the investigation and prosecution of the matter:

1 st February 2003	Applicant was born.
16 th April 2019	The applicant connects with the ‘MoneyMake’ social media account.
30 th April 2019	Numerous transfers are made into the applicant's bank account, and he is asked to withdraw those monies by three men who collect him from school. The applicant's mother receives a text message from AIB asking her to confirm the transactions are genuine; which she declines to do.
1 st May 2019	The applicant and his mother attend Blessington Garda Station.
2 nd May 2019	gardaí obtain a s. 63 order directing disclosure of the applicant's bank account details from AIB.
3 rd May 2019	gardaí serve the s. 63 order on the manager of AIB Bank.
3 rd May 2019	The applicant's phone is given to Wicklow Garda Station for technical examination.
7 th June 2019	Technical examination of the phone is completed.
30 th July 2019	Enquiries made with AIB as to the documentation relating to the applicant's account.
9 th September 2019	Documentation on foot of s. 63 order received by the gardaí.
21 st October 2019	Garda Curry requests assistance from a detective familiar with such fraud investigations.
23 rd October 2019	Detective Garda Whelan is assigned to assist with the applicant's investigation file.
6 th December 2019	Detective Garda Whelan applied for further information from AIB.
23 rd December 2019	Further information is received by the gardaí from AIB.
January 2020	D/S Treacy reviews the investigation file.
15 th July 2020	The applicant is arrested.
23 rd July 2020	Youth Referral file is created for the applicant.
31 st July 2020	National Juvenile Office request the skeletal file.
20 th August 2020	Skeletal file sent to the NJO by the gardaí.
1 st February 2021	The applicant attains his majority.
4 th March 2021	Youth referral file resubmitted with amendments requested by the NJO in February 2021.
15 th March 2021	Applicant is deemed unsuitable for inclusion in the GYDP.
15 th March 2021	File submitted to the DPP for directions.
23 rd June 2021	More information is sought by the DPP.
4 th July 2021	Additional information requested is sent to the DPP by the gardaí.
19 th August 2021	DPP requests further information.
22 nd August 2021	Further information is furnished to the DPP by the gardaí.
10 th September 2021	DPP direct prosecution of the applicant.
6 th October 2021	Applicant is charged.
14 th October 2021	The applicant appears in the District Court. Judge Zaidan refuses jurisdiction to hear the case.
25 th November 2021	book of evidence is served upon the applicant.
14 th February 2022	Leave to proceed by way of judicial review is granted.

Applicant's...