Dean Kinsella v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 01 December 2021 |
| Neutral Citation | [2021] IEHC 759 |
| Docket Number | [Record No. 2020/158 JR] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 759
[Record No. 2020/158 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 1st day of December, 2021
The within applicant is seeking to prohibit the continued prosecution of him by the respondent under s.112 of the Road Traffic Act 1961 as amended and further seeks to secure declarations that:
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(a) there has been blameworthy prosecutorial delay;
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(b) there has been a breach of his right to an expeditious trial; and,
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(c) he has been unfairly deprived of safeguards pursuant to the Children Act 2001 (Children Act).
Although a claim for damages is also included this was not pursued.
The applicant was born on 5 August 2001 and was apprehended on 19 April 2018 in respect of events currently pending before the District Court. At the date of apprehension, the applicant was aged sixteen years and eight months.
The applicant together with another individual were travelling on a stolen motorbike when members of An Garda Síochána signalled to them that they should stop, however, both individuals abandoned the bike and fled the scene. The applicant was chased by a member of An Garda Síochána and ultimately apprehended. The applicant subsequently admitted he was travelling on the bike but denied being the driver or that he had stolen the bike.
The relevant legal test was restated by Dunne J. in the Supreme Court in Donoghue v. Director of Public Prosecutions [2014] IESC 56 at p.7, where it was stated that there was no doubt that once there is a finding of blameworthy prosecutorial delay, a balancing exercise must be conducted to establish if there is something additional to the delay itself to outweigh the public interest in the prosecution of serious offences. The facts and circumstances of each case will have to be considered carefully. If the accused is nearing his eighteen birthday one could attach little or no weight to the fact that someone would be tried as an adult. A number of factors would have to be taken into account including the length of delay, the age of the person, the seriousness of the crime, the complexity of the case, and the nature of any prejudice relied on, in addition to any other relevant fact or circumstance. It was confirmed that it is not enough to rely on the special duty of the state authorities to ensure a speedy trial of a child.
In that case and indeed in all such cases the moving party relies on the Children Act.
In the instant matter the applicant relies on the following provisions of the Children Act:
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(a) Section 93(1)(a) which provides that there shall be no report which reveals the name, address or school of the child or any particulars likely to lead to their identification;
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(b) Section 96 which provides that any penalty imposed should cause as little interference as possible with the child's legitimate activities and pursuits and should take the form most likely to maintain and promote the development of the child and should take the least restrictive form with a period of detention being imposed only as a measure of last resort;
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(c) Section 99 where the court is obliged if it is of the view that the appropriate penalty would be community sanction, detention or detention and supervision, to adjourn proceedings to request a probation and welfare officer to prepare a report in writing.
The applicant states that the loss of anonymity is a most serious loss to the applicant in the circumstances.
In the judgment of Mr. Justice McDermott in M.S. v. DPP [2018] IEHC 285, para.30 it is stated:
“… The assembly and submission of the file might properly be delayed by a consideration of whether the applicant was suitable for admission to the Divergence Programme and the preparation and consideration of a report in that regard. Since that process should not have taken more than four to six weeks and given that it was inevitable that he would be deemed unsuitable… the considerations of the case under the Divergence Programme should not have taken longer than six weeks…”.
Accordingly, I take it from reliance on this judgment that in a matter where it was inevitable that the relevant individual would not be deemed suitable for admission to the programme, assembly of a file might be delayed by four to six weeks, and thereafter the consideration within the programme should not take longer than six weeks.
The applicant says there was a delay between the date of the offence on 19 April 2018, and 17 October 2018 when the referral to the Garda Youth Diversion Office was created. The applicant asserts this amounts to a six month period of delay. It appears to me that the applicant has not taken into account the following delay factors:
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(1) that the statement of the owner was not taken until 15 May 2018; and,
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(2) a period of time for consideration as to the suitability of the applicant for admission to the programme.
It is noted that no explanation from the respondent for any delay was forthcoming and it is considered that the matter was straightforward once the statement of the owner of the motorcycle was secured.
Bearing in mind the views expressed by McDermott J. and reliance thereon by the applicant it appears to me (there being no suggestion that the applicant would inevitably be deemed unsuitable) that an allowance of a period of approximately two months from the date of securing of the statement of the owner would be considered reasonable and accordingly there appears to be a period of three months unexplained.
There was a further asserted delay between 17 October 2018 when a referral was submitted to the Garda Youth Diversion Office and a response from the programme on 31 January 2019. The applicant seeks to suggest that the entire period comprised delay by the respondent, who in turn argues that the DPP cannot be fixed with this delay period within the programme.
Bearing in mind the views expressed by McDermott J. aforesaid it does appear:
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(a) some allowance must be afforded for consideration of the file while within the programme, and, the intervening Christmas and holiday period; and,
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(b) a further allowance when calculating the time in assessing blameworthy prosecutorial delay.
Accordingly, it does appear that there was an unaccounted delay period of approximately seven weeks – in this regard it is clear that McDermott J. did approach the time within the programme as giving rise to prosecutorial delay.
The third period of delay is said to be from the response of the programme on 31 January 2019 to the submission of the file to the DPP on 12 May 2019. Again...
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