A.D v The Director of Public Prosecutions, [2006] IEHC 135 (2006)

Docket Number:2004 915JR
Judge:Mac Menamin J.


THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTJUDGMENT of Mr. Justice John MacMenamin dated the 6th day of April, 2006.

  1. Arising for consideration in this judicial review application are the issues of a constitutional right to a trial with due expedition and an assertion of prosecutorial delay in a situation where the parties involved were at the time of the offences alleged young people under the age of eighteen years.

    The applicant stands accused of 21 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 in that he did on various dates between 1st October, 1997 and 30th June, 1999 sexually assault one P.M. (hereinafter referred to as the "the complainant").

    The Ages of the Complainant and the Applicant

  2. It is alleged that the applicant committed these offences whilst the male complainant was a foster child in the applicant's parents home in a rural location. The applicant was born on 1st November, 1982. It has been stated he was accordingly aged fourteen years and nine months at the date of commencement of the period in which the alleged offences occurred. He was aged sixteen years and five months at the end date of the time at which the offences allegedly occurred.

  3. The complainant is stated to have been born on 10th August, 1985. Accordingly, on that basis, he was twelve years and two months at the alleged date of commencement of the offences and thirteen years and nine months at the end of the period in question.

    In view of the importance of absolute and relative age difference in this case it should be pointed out that, on the second page of his statement of evidence, the complainant identifies September 1997 as the time the alleged offences commenced when, he says, the applicant was "going on seventeen years of age". This would not appear to be in accord with the applicant's date of birth of 1st November, 1982. In September, 1997 the applicant was, on the evidence, aged fourteen years and nine months, not going on seventeen years. On the basis of the complainant's date of birth as set out in the respondents written submissions, in September 1997 he would have been aged twelve years and one month.

    In the month of July 1999 the complainant was removed from the applicant's parents home and an investigation was launched by the relevant Health Board into whether the applicant had been engaged in alleged sexual offences against the complainant.


  4. At the outset of the case the following dates were identified as being relevant:

    Medical examination 15th June 1999

    Period of alleged offences 1st October 1997 - 30th June 1999

    First disclosure of the alleged offences regarding the

    complainant made by another foster child, D O'L, to social worker 13th July 1999

    Notification of suspected child abuse sent from

    Health Board to Superintendent of An Garda Siochána 20th July 1999

    Parents of applicant told of allegations and

    boys removed from foster home immediately 13th July 1999

    Parents of complainant told of allegations 14th July 1999

    Doctor examines complainant and two other

    children from the foster home 15th July 1999

    Health Board case conference with Garda

    M.W. in attendance 17th October 2000

    Complainant calls to local Garda station

    requesting Gardaí to note the matter and indicating

    he would think about making a written statement 29th March 2001

    Complainant makes written statement of complaint

    to Gardaí 12th April 2001

    Sergeant M. attends meeting with a care

    Organisation within the relevant Health Board 23rd April 2001

    Health Board provides names and addresses to the

    Gardaí 25th May 2001

    Gardaí take statements from a number of witnesses August 2001 - February 2002

    Applicant arrested and interviewed 2nd April 2002

    Prosecution file being finalised July 2002 - October 2002

    Communication received from D.P.P. regarding

    referral of the case to the National Juvenile Office 12th March 2003

    File sent to the National Juvenile Office April 2003

    State Solicitor informed applicant was not

    suitable for inclusion in the Juvenile Diversion

    programme 19th June 2003

    Directions received from the D.P.P. to charge

    the applicant 18th August 2003

    Applications for summons made 14th October 2003

    Summons returnable to 26th November 2003

    Applicant returned for trial to Circuit Court 28th July 2004

    Leave to issue judicial review granted 18th October 2004

  5. In response to the affidavit sworn by the applicant, affidavits have been filed by the State Solicitor Mr. Martin Linnane, Sergeant M. M. of An Garda Siochána, the complainant P.M. and by Garda M.W. However, no affidavit has been filed by an officer in the Office of the Director of Public Prosecutions charged with dealing with the file from October 2002 to the 12th March, 2003, and thereafter the book of evidence also contains statements from social workers in the employment of the relevant Health Board.

    At the time relevant to these allegations the applicants' parents ran a foster home. They offered foster accommodation to children referred to them by the Health Board. P.M., the complainant was a foster child placed in the home from August 1997 until June of 1999.

    Three months after the removal of the complainant and other children from the foster parents, on 16th November 1999 the relevant Health Board launched an investigation into the allegations. They wrote to the applicant's parents saying that they would be in touch with them when the investigation was complete. The applicant states that, thereafter nothing further was heard from the Health Board in relation to the investigation and nothing at all was heard from the prosecuting authorities. From July 1999 until he attained the age of 18 years the applicant he commenced a weekly course of counselling and of psychological assessments under the auspices of the Health Board. These took place every Wednesday after school and his mother drove him to a nearby town for this purpose. The applicant states that he attended each one of these counselling sessions. This continued for approximately 18 months.

  6. When the applicant became eighteen years of age, he no longer came within the remit of the Child Psychiatric Service of the Health Board. However he thereafter continued counselling and psychiatric treatment for of period of one year. He says that living with this regime was difficult. He found it difficult to concentrate properly in school. He completed his Leaving Certificate in June 2000 and passed all subjects bar one. He did not attain the academic level that he would have hoped for and consequently embarked on a CERT course as a trainee chef and thereafter completed one year of his studies at an Institute of Technology.

  7. The applicant states that all through this time it appeared to him that, due to the young ages of himself and the alleged victim, the matter was being dealt with only by the Health Board. He says now he was too young to fully appreciate the mechanics of such a situation but he thinks the Health Board informed the prosecuting authorities of the situation at the time and that if any legal action was to be taken then it should have been commenced at the time when he was still a child rather than now when he is an adult.

    Only in March 2001 did P.M. the complainant meet first with the Gardaí. The next month, in April he made a formal statement of complaint. One year later still, in April 2002, the Gardaí called to the applicant and took a statement. He then heard nothing further apart from one visit from a Juvenile Liaison Officer. Only in October 2003, some two and a half years after P.M. first met the Gardaí, and some four years and four months since the Health Board were informed about the allegations was a complaint made to the District Court and the summonses were issued.

    During that period the applicants says that he had continued with his career and had done everything asked of him by the Health Board. He says that had he been dealt with expeditiously by the prosecuting authorities and thereby the courts he would, even if convicted, have been treated as a young person for alleged activities and conduct while he was a child and young person. Now, as an adult, he says he would be tried and judged as an adult for alleged activities and conduct carried out as a child. In consequence of the elapse of time which has occurred he may now, if convicted, be subject to the provisions of the Sex Offenders Act 2001. Had he been dealt with in 1999 he would not be subject to the provisions of that legislation regarding registration and restriction, and the label and opprobrium that such procedure attracts. It is pointed out that the matter is rendered somewhat more complex by a suggestion that the complainant P.M. himself engaged in sexual abuse of a fellow foster child who was aged five years at the time.

  8. The applicant's case therefore is that a period of four years and four months has elapsed between the Health Board's being informed of the allegations and the issuing of the summonses. He says this lapse of time irreparably prejudices his prospect of a trial with due expedition, and is in breach of his right to a fair trial in due course of law and with reasonable expedition. He adds that the delay which occurred led him to believe that he would not be prosecuted in respect of the allegations by P.M. He says he was partly induced to this belief by a visit from the Juvenile Liaison Officer who represented to him that probation might be available to him, which visit was subsequent to the complaint having been made by P.M.

  9. The affidavit of Sergeant M. sets out further background detail. It states that the complainant alleged that the applicant had threatened him that if he made any issue about what allegedly occurred he would deny it and that it would be him who would get into trouble about it. The complainant states that A.D. was in a position of dominion over him while he was in the D. house. His...

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