D.K. v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 24 May 2023
• Neutral Citation: [2023] IEHC 274
• Court: High Court
• Docket Number: [Record No. 2022/81 JR]

Between

D.K.

Applicant

and

Director of Public Prosecutions

Respondent

[2023] IEHC 274

[Record No. 2022/81 JR]

THE HIGH COURT

Prosecution – Assault causing harm – Delay – Applicant seeking an injunction restraining his continued prosecution by the respondent – Whether there was culpable prosecutorial delay

Facts: The applicant applied to the High Court seeking, inter alia, an injunction restraining his continued prosecution by the respondent, the Director of Public Prosecutions, on one charge of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, as amended, on grounds of delay. In particular, the applicant asserted that from the date of the alleged offence 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 had been deprived of the statutory protections afforded to him under the Children Act 2001, by virtue of the fact that his prosecution was brought on for hearing prior to the time when he reached the age of majority.

Held by the Court that, in all the circumstances, and having regard to the lack of any explanation or excuse for the periods of delay from the respondent, that period amounted to culpable prosecutorial delay. The Court was supported in that finding by the findings made by the President of the Court of Appeal in his judgment in DPP v Furlong [2022] IECA 85, which was a case that was very similar in circumstances to this case. In that case, the applicant was charged with offences contrary to s. 3 of the 1997 Act. As in this case, the gardaí had the benefit of CCTV footage and statements from the injured parties within a number of weeks of the commission of the offence. In that case, where the offence had occurred on 22nd May, 2017, the court held that it was not unrealistic to hold that the investigative phase could have been concluded within a period of approximately 5/6 months. The Court of Appeal held that the trial judge had been correct in finding that there was blameworthy prosecutorial delay in that case. In carrying out the balancing exercise in this case, the High Court noted that the applicant was considerably less than the age of majority at the time that he allegedly committed the offences; the investigation was all but complete within a very short period of time after the date of the offences and no credible explanation had been forthcoming why the gardaí and the prosecuting authorities did not bring the matter to trial well in advance of the applicant attaining his majority. The Court noted that, as a result of their failure to do so, he had lost a very significant right, being the right to anonymity; in addition, he had lost the mandatory nature of the procedural benefits that are provided for in the trial of minors under the 2001 Act, particularly at the sentencing stage. The Court noted that while in the Furlong case the Court of Appeal did not prohibit the trial of the applicant, notwithstanding that there was considerable culpable prosecutorial delay, it was clear from reading the judgment of the court that one of the factors which weighed heavily in their consideration of the circumstances in that case was the fact that some of the delay was due to the failure of the applicant to attend for an interview with the gardaí, which had been arranged with his mother prior to that time. No explanation had been forthcoming why the applicant did not keep that appointment. In this case, the High Court noted that it was accepted that the applicant did not contribute to any delay that arose in the investigation and prosecution of the case against him; in addition, there was no weapon used in this case. Therefore, the Court held that it was appropriate to distinguish the Furlong decision from this case.

The Court, looking at the entire circumstances in this case, was satisfied that the appropriate order to make was that set out at para. 1 of the applicant's notice of motion dated 21st February, 2022.

Application granted.

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, wherein the applicant seeks, inter alia, an injunction restraining his continued prosecution by the respondent on one charge of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, as amended, on grounds of delay.

2 . In particular, the applicant asserts that from the date of the alleged offence 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 (hereafter “the 2001 Act”), by virtue of the fact that his prosecution was brough on for hearing prior to the time when he reached the age of majority.

Background.

3 . The prosecution in question is currently pending before the Circuit Criminal Court in Kildare. It arises out of an incident that occurred on 23 ^rd July, 2019 at a Londis shop on Main Street, Maynooth, Co. Kildare. It is alleged that the applicant was with a group of youths, who entered the shop and began to throw items around. It is alleged that while a member of staff was attempting to push the youths out of the shop, the applicant assaulted one of the staff members, by kicking and punching him in the face. That employee suffered injuries as a result of the assault, including the loss of a tooth and extensive bruising to his face.

4 . The applicant was born on 1 ^st February 2003, meaning he was 16 years and 5 months, at the time of the alleged offence. He was arrested on 25 ^th July 2019. He was interviewed upon arrest, and made several admissions in relation to the alleged offence.

5 . The applicant reached the age of majority on 1 ^st February, 2021.

6 . The applicant was charged with an offence contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, as amended, on 22 ^nd April 2021, when he was 18 years old.

7 . The applicant was not present at Naas District Court on 6 ^th May 2021, when evidence of arrest, charge and caution was given by Sgt. Brian Jacob, before Judge Zaidan. Sgt. Jacob indicated that the DPP had directed that there could be summary disposal of the applicant's case. However, Judge Zaidan held that he did not consider the matter to be minor in nature, and thus, refused jurisdiction to hear the case.

8 . Judge Zaidan adjourned the proceedings to allow the applicant's co-accused to bring applications pursuant to s. 75 of the 2001 Act. The applicant, having turned 18 years old, was not able to move such an application. On 22 ^nd July, 2021, Judge Zaidan refused jurisdiction to hear the case and adjourned the case for service of the book of evidence.

9 . The book of evidence was served upon the applicant on 14 ^th October, 2021. He was returned for trial, on bail, to the next sittings of the Circuit Criminal Court in Kildare.

10 . By order dated 14 ^th February, 2022, Meenan J. gave the applicant leave to proceed by way of judicial review for the reliefs sought in his ex parte docket dated 2 ^nd February, 2022.

Chronology.

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

1 st February 2003	Applicant was born.
23 rd July 2019	Alleged assault of the injured party in the Londis shop.
24 th July 2019	Gardaí obtain CCTV footage from the Londis shop.
25 th July 2019	Applicant is arrested and interviewed by Gardaí, in which interview he makes admissions.
28 th July 2019	Statement is taken from the injured party by the Gardaí.
10 th September 2019	Medical reports are requested by the Gardaí.
5 th November 2019	Request for medical reports is repeated.
11 th November 2019	Medical report is received by the Gardaí from Naas Emergency Department.
25 th November 2019	Medical report is received from Dublin Dental Hospital.
7 th January 2020	Youth Referral of the applicant approved by Superintendent Wall.
13 th January 2020	Youth Referral of applicant created by Garda Kelly.
26 th February 2020	‘Skeleton file’ of the applicant forwarded for directions.
11 th April 2020	Applicant is deemed unsuitable for inclusion in the Youth Diversion Programme.
1 st February 2021	Applicant attains his majority.
7 th March 2021	File submitted for directions.
14 th and 20 th March 2021	File returned for amendments.
22 nd March 2021	File is re-submitted for directions.
24 th March 2021	Inspector McDonald directs that the applicant be charged with s. 3 assault contrary to the 1997 Act.
22 nd April 2021	Applicant is arrested and charged with assault.
6 th May 2021	First appearance in the District Court, at which the case is remanded for a s. 75 hearing of the applicant's co-accuseds.
2 nd September 2021	Section 75 application is moved by the co-accused and District Judge refuses jurisdiction to hear the case.
14 th October 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 Submissions.

12 . Counsel on behalf of the applicant, Mr. James Dwyer SC, submitted that there was culpable prosecutorial delay in this case, for which the respondent had offered no explanation.

13 . Counsel submitted that there was no explanation forthcoming from the respondent as to why there had been a delay of several months from July 2019 to January 2020 in referring the applicant to the Garda Youth Diversion Programme, when all the information required for that referral, was at the disposal of the Gardaí within days of the incident.

14 . Counsel submitted that the...