Doe (No.1) v The Director of Public Prosecutions; Doe (No.2) v The Director of Public Prosecutions; Doe (No.3) v The Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 09 May 2025
• Neutral Citation: [2025] IESC 17
• Docket Number: Supreme Court Record Nos. 2024/69, 2024/72 and 2024/73

Between:

Doe (No 1), Doe (No 2) and Doe (No 3)

Applicants/Appellants

and

The Director of Public Prosecutions

Respondent/Respondent

and

The Attorney General

Notice Party

and

The Irish Human Rights and Equality Commission

Amicus Curiae

[2025] IESC 17

O'Donnell C.J.

Dunne J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

Donnelly J.

Supreme Court Record Nos. 2024/69, 2024/72 and 2024/73

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Prosecution – Sexual assault – Prejudicial delay – Applicants appealing against refusal to restrain their further prosecution – Whether the applicants were entitled to prohibition

Facts: Each party appealed to the Supreme Court against part of the order made in the High Court (Simons J): Doe v Director of Public Prosecutions [2024] IEHC 112. The applicants appealed against the refusal of the High Court to restrain, on grounds of prejudicial delay, their further prosecution on charges relating to an alleged sexual assault, while the respondent, the Director of Public Prosecutions, cross-appealed in relation to an order of the High Court prohibiting the identification of the applicants. The applicants’ case was that the breach of their rights, and the resulting prejudice to them by reason of the loss of statutory protections, meant that they were entitled to an order prohibiting their further trial. The High Court did not accept that argument. It considered that the situation warranted a Gilchrist order (Gilchrist v Sunday Newspapers Ltd [2017] IESC 18), made pursuant to the inherent jurisdiction of the court, preventing the public identification of the applicants. In their appeal the applicants contended that the Gilchrist order was not a sufficient remedy and that they were entitled to prohibition.

Held by the Court that in an application for prohibition or injunctive relief, where no specific prejudice is claimed and the sole ground for such relief is that the delay has led to a child offender reaching the age of 18 and thus losing the protection of the Children Act 2001, it will rarely be appropriate to grant such a remedy if the offence is found to be serious. The Court held that the assessment of seriousness requires a case-specific, fact-based analysis of the harm allegedly done, including harm to an identifiable victim, and the presence of any aggravating factors; if the offence is serious, the public interest in the administration of justice and the prosecution of offences will generally outweigh the damage done to the interests of the defendant even if a breach of the right to a trial with due expedition has been established. The Court held that where the delay has been found to be such as to amount to a breach of the constitutional right to a trial with due expedition, and the defendant has as a result lost the protection of the Act, the court should consider granting remedies falling short of prohibition to address the effects of the breach on the interests of the defendant; since, in this context, the most significant of the protections afforded by the Act is that provided for in s. 93, the court should consider making a Gilchrist order if not to do so would expose the defendant to serious public odium. The Court held that the terms of a Gilchrist order should be equivalent to the terms of s. 93, so that it is possible for the trial court to lift it, on application by an appropriate person, for any of the reasons set out in the section. The Court held that the High Court, and therefore the Central Criminal Court, has the power to grant orders with permanent effect. This judgment did not determine the full scope of the powers of the District Court and Circuit Court, and hence did not determine that they have power to make an order of that extent; the Supreme Court did find that they have the power to make an order that covers, at least, the time during which they have seisin of a matter.

The Court dismissed the appeal.

Appeal dismissed.

Judgment of Ms Justice Iseult O'Malley delivered the 9th day of May 2025

Introduction

1 In each of these three appeals, each party appeals against part of the order made in the High Court (Simons J. – see Doe v. Director of Public Prosecutions [2024] IEHC 112). The applicants appeal against the refusal of the High Court to restrain, on grounds of prejudicial delay, their further prosecution on charges relating to an alleged sexual assault against a young girl, while the Director of Public Prosecutions has cross-appealed in relation to an order of the High Court prohibiting the identification of the applicants. To avoid confusion, the individuals to whom Simons J. gave the pseudonym “Doe” will be referred to here as “the applicants” and the Director of Public Prosecutions will be referred to as “the Director”.

2 The issues in the appeal have their origins in the fact that each of the applicants was a child at the time of the alleged offence, at the time when the complainant identified them to the gardaí, and at the time when they were arrested and questioned, but was over 18 when charged and brought into the criminal justice process. The High Court has made a finding, unchallenged in these appeals, that there was unjustified delay on the part of the investigation and prosecution authorities, and that the delay amounted to a breach of the applicants' constitutional right to a trial with due expedition.

3 The delay has had the effect that the provisions of the Children Act 2001 are now inapplicable to the applicants. If they are to be tried at this stage, they will be tried as adults. This means that they will not have the benefit of protective statutory provisions designed for children before the criminal courts, such as the statutorily guaranteed right not to be publicly identified in reports of the proceedings.

4 The applicants' case is that the breach of their rights, and the resulting prejudice to them by reason of the loss of the statutory protections, means that they are entitled to an order prohibiting their further trial. The High Court did not accept that argument. It did, however, consider that the situation warranted an order, made pursuant to the inherent jurisdiction of the court, preventing the public identification of the applicants. As the leading authority on the power to make such an order is Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18, [2017] 2 I.R. 284 it will be referred to here as a Gilchrist order.

5 In their appeal the applicants contend that the Gilchrist order is not a sufficient remedy and that they are entitled to prohibition. The primary issue in their appeals is, therefore, whether in the circumstances of the case, including the now-acknowledged breach of constitutional rights by gardaí and prosecution authorities, the further prosecution of the applicants should be prohibited. Within that broad issue there are a number of matters to be resolved.

6 As well as the loss of the statutory anonymity, the applicants have argued that they have lost the opportunity to make a case to a District Judge, pursuant to s.75 of the Act, that their cases could properly be dealt with summarily in the District Court rather than on indictment. That procedure involves a decision by the Judge on the question whether the case is a “minor” one but does not, unlike most of the comparable procedures for cases involving adults, require the consent of the Director for summary disposal. The High Court considered that this could only be held to be a relevant prejudice if the applicants established, on the balance of probabilities, that a District Judge would have reached the conclusion that the cases were fit for summary disposal. It was further held that, in order to reach that conclusion, the applicants would have to show that the District Judge would have considered that the possibility of a sentence of over 12 months was positively excluded. The applicants argue that this was an erroneous analysis.

7 The applicants contend that the High Court also erred in finding that they were not significantly prejudiced by the fact that ss.96 and 99 of the Act will no longer be applicable to them. Section 96 sets out the principles to which a court is bound to have regard when sentencing a child, including the stipulation that a sentence of detention should be considered only as a measure of last resort. Section 99 requires the court to order a probation report before, inter alia, imposing a sentence of detention. The purpose of such a report, under the section, is to assist the court in determining a suitable community sanction (if any).

8 As a fall-back position, should the Court conclude that prohibition is not warranted, the applicants oppose the Director's appeal and defend the making of the Gilchrist order.

9 The Director appealed against the Gilchrist order because she considered that it was necessary to bring an issue of such public importance to the appellate courts. The Attorney General has been joined as a notice party in the appeals, at the request of this Court. That being so, at this stage the Director's position is that it is primarily for the Attorney General to deal with the issue. If the Court concludes that a trial can only proceed on the basis that such an order is made, the Director would prefer that outcome to an order of prohibition, which she continues to oppose.

10 The Attorney General, who was joined as a notice party, is concerned only with the making of the Gilchrist order and not with the question whether or not prohibition should be granted. He accepts that the courts have the jurisdiction to make an order of this nature in exceptional cases but contends that, having regard to the importance of the principle that justice should be administered in public, it was not justified in this case.

11 The Irish Human Rights and Equality Commission has also been given liberty to intervene as amicus curiae. The Commission submits that the Gilchrist...