DOE v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 29 February 2024
• Neutral Citation: [2024] IEHC 112
• Court: High Court
• Docket Number: 2022 802 JR 2022 994 JR

Between

DOE and Others

Applicants

and

Director of Public Prosecutions

Respondent

[2024] IEHC 112

2022 802 JR

2022 884 JR

2022 994 JR

THE HIGH COURT

JUDICIAL REVIEW

Appearances

Michael Delaney SC and Amy Deane for the first applicant instructed by David Burke & Co., Solicitors

Philip Sheahan SC and Conor Roberts for the second applicant instructed by J.F. Williams & Co., Solicitors

Dermot Cahill SC and Gareth Hayden for the third applicant instructed by J.F. Williams & Co., Solicitors

Feichín McDonagh SC and Gráinne O'Neill for the respondent instructed by the Chief Prosecution Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 29 February 2024

INTRODUCTION

1 This judgment is delivered in respect of three related judicial review proceedings. In each case, the male applicant stands accused of offences arising out of the alleged sexual assault and false imprisonment of a fifteen year old female. As of the date of the alleged offences, each of the applicants was under the age of eighteen years and thus a “ child” as defined under the Children Act 2001.

2 These judicial review proceedings arise against a legislative backdrop whereby the qualifying criterion for most of the important procedural protections provided for under the Children Act 2001 is the age of the accused as of the date of the trial of the offences (as opposed to his or her age as of the date when the alleged offences are said to have occurred).

3 The applicants seek to restrain the criminal prosecution pending against them on the basis of prosecutorial delay. It is contended that had the criminal investigation and prosecution been conducted expeditiously, then the applicants would have been entitled to have the charges against them determined in accordance with the procedures prescribed under the Children Act 2001. This would have afforded the applicants certain statutory entitlements including an enhanced possibility for summary disposal, a right to anonymity, a mandatory probation report, and favourable sentencing principles. The benefit of these statutory entitlements is not now available in circumstances where each of the applicants reached the age of majority prior to their being charged with the alleged offences. The shorthand “ ageing out” will be employed to describe this legal consequence.

4 For the reasons explained herein, it is only the loss of the opportunity to avail of a right to anonymity which, potentially, represents a cause of prejudice to the applicants. This prejudice can, however, be removed by the High Court directing that the criminal prosecution is to be subject to reporting restrictions. Accordingly, the applications for judicial review will each be refused.

APPLICABLE LEGAL PRINCIPLES

5 The Supreme Court has held that, in the case of a criminal offence alleged to have been committed by a child or young person, there is a special duty on the State authorities, over and above the normal duty of expedition, to ensure a speedy trial. See B.F. v. Director of Public Prosecutions [2001] IESC 18, [2001] 1 I.R. 656 and Donoghue v. Director of Public Prosecutions [2014] IESC 56, [2014] 2 I.R. 762.

6 The Supreme Court in Donoghue emphasised that blameworthy prosecutorial delay alone will not suffice to prohibit a trial. Rather, the court must conduct a balancing exercise to establish if there is something additional to the delay itself to outweigh the public interest in the prosecution of serious offences. See paragraph 52 of the reported judgment as follows:

“There is no doubt that once there is a finding that blameworthy prosecutorial delay has occurred, a balancing exercise must be conducted to establish if there is by reason of the delay something additional to the delay itself to outweigh the public interest in the prosecution of serious offences. In the case of a child there may well be adverse consequences caused by a blameworthy prosecutorial delay which flow from the fact that the person facing trial is no longer a child. However, the facts and circumstances of each case will have to be considered carefully. The nature of the case may be such that notwithstanding the fact that a person who was a child at the time of the commission of the alleged offence may face trial as an adult, the public interest in having the matter brought to trial may be such as to require the trial to proceed. Thus, in a case involving a very serious charge, the fact that the person to be tried was a child at the time of the commission of the alleged offence and as a consequence of the delay will be tried as an adult, may not be sufficient to outweigh the public interest in having such a charge proceed to trial. In carrying out the balancing exercise, one could attach little or no weight to the fact that someone would be tried as an adult in respect of an offence alleged to have been committed whilst a child if the alleged offence occurred shortly before their 18th birthday. Therefore, in any given case a balancing exercise has to carried out in which a number of factors will have to be put into the melting pot, including the length of delay itself, the age of the person to be tried at the time of the alleged offence, the seriousness of the charge, the complexity of the case, the nature of any prejudice relied on and any other relevant facts and circumstances. It is not enough to rely on the special duty on the State authorities to ensure a speedy trial of the child to prohibit a trial. An applicant must show something more as a consequence of the delay in order to prohibit the trial.”

7 The Supreme Court held that the trial judge was correct to attach significance to the fact that the accused in Donoghue would not have the benefit of certain of the protections of the Children Act 2001. Three particular aspects of the Children Act 2001 were referenced as follows. First, the reporting restrictions applicable to proceedings before any court concerning a child (section 93). Secondly, the sentencing principle that a period of detention should be imposed on a child only as a measure of last resort (section 96). Thirdly, the mandatory requirement to direct a probation officer's report (section 99).

8 The Supreme Court then stated its conclusions as follows (at paragraph 56):

“The special duty of State authorities owed to a child or young person over and above the normal duty of expedition to ensure a speedy trial is an important factor which must be considered in deciding whether there has been blameworthy prosecutorial delay. That special duty does not of itself and without more result in the prohibition of a trial. As in any case of blameworthy prosecutorial delay, something more has to be put in the balance to outweigh the public interest in the prosecution of offences. What that may be will depend upon the facts and circumstances of any given case. In any given case, the age of the young person before the courts will be of relevance. Someone close to the age of 18 at the time of an alleged offence is not likely to be tried as a child no matter how expeditious the State authorities may be in dealing with the matter. On the facts of this case, had the prosecution of Mr. Donoghue been conducted in a timely manner, he could and should have been prosecuted at a time when the provisions of the Children Act 2001 would have applied to him. The trial judge correctly identified a number of adverse consequences that flowed from the delay. Accordingly, I am satisfied that the trial judge was correct in reaching his conclusion that an injunction should be granted preventing the DPP from further prosecuting the case against Mr. Donoghue.”

9 The principles governing the assessment of prosecutorial delay have been more recently considered in three judgments of the Court of Appeal, A.B. v. Director of Public Prosecutions, unreported, Court of Appeal, 21 January 2020; Director of Public Prosecutions v. L.E. [2020] IECA 101; and Furlong v. Director of Public Prosecutions [2022] IECA 85. These judgments elaborate upon the nature of the prejudice which might be suffered by an accused, and also address whether there are steps which the High Court might take to mitigate the loss of some of the protections provided for under the Children Act 2001. These judgments will be considered, in context, in the discussion which follows.

PARTICULARS OF THE ALLEGED OFFENCES

10 The summary of the particulars of the alleged offences which follows below is predicated upon the material in the book of evidence. It should be emphasised that this summary does not entail the making of any findings of fact by the High Court and that the applicants all enjoy a presumption of innocence.

11 Having regard to the fact that there is a criminal prosecution pending, and that the complainant has a statutory entitlement to anonymity, certain specific details have been deliberately excluded from the summary. Moreover, personal details, such as the parties' respective dates of birth, have been omitted to avoid the risk of jigsaw identification.

12 The incident giving rise to the alleged offences is said to have occurred on 10 June 2019. As of that date, the female complainant and the male applicants had all been students at the same secondary school and were known to each other. The parties were sitting their junior certificate examinations at the time. The complainant alleges that, during a break between examinations, she had gone into a named building off-campus and that eight male students entered the building thereafter.

13 It is alleged that the second applicant pulled down his trousers and boxers exposing his penis and that others in the company then said that the complainant should “ give him a blow job” or “ shag” him. It is alleged that the second applicant put his hands up the complainant's shirt and bra, and that he also touched the complainant's “ ass” and “ vagina” (over her...