Dos Santos v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 26 May 2020
• Neutral Citation: [2020] IEHC 252
• Docket Number: 2019 No. 387 J.R.
• Court: High Court
• Date: 26 May 2020

BETWEEN

MATTHEW DOS SANTOS

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2020] IEHC 252

Garrett Simons J.

2019 No. 387 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Prosecutorial delay – Balance of justice – Applicant seeking to restrain the further prosecution of criminal charges pending against him – Whether there had been culpable or blameworthy prosecutorial delay

Facts: The applicant, Mr Dos Santos, applied to the High Court seeking to restrain the further prosecution of criminal charges pending against him, on the basis of prosecutorial delay. The alleged offences were said to have occurred at a time when the applicant was sixteen years old, and thus a “child” as defined under the Children Act 2001. It was contended that had the Garda investigation been conducted expeditiously, then the applicant would have been entitled to have the charges against him determined in accordance with the 2001 Act. This would have afforded the applicant certain statutory entitlements in respect of inter alia anonymity, sentencing principles, and a mandatory probation report. The benefit of these statutory entitlements was not available in circumstances where the applicant reached the age of majority prior to the trial of the offences.

Held by the Court that there had been culpable or blameworthy prosecutorial delay in this case. The Court held that there were a number of factors which tipped the balance in favour of allowing the prosecution to proceed: (i) the offences alleged were very serious offences; (ii) the applicant’s ability to defend the proceedings had not been prejudiced; (iii) in contrast to the accused in Donoghue v Director of Public Prosecutions [2014] 2 I.R. 762, the applicant had not made any admissions; and (iv) the applicant’s previous convictions were relevant in assessing the alleged prejudice said to have been caused by the loss of the sentencing principles otherwise applicable under s. 96 of the 2001 Act. In all the circumstances, the Court was satisfied that the four factors identified above outweighed any prejudice accruing to the applicant as a result of the loss of the reporting restrictions under s. 93 of the 2001 Act. The Court held that the balance of justice lay in favour of allowing the prosecution to proceed.

The Court held that the application for judicial review would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 26 May 2020

INTRODUCTION

1 The Applicant herein seeks to restrain the further prosecution of criminal charges pending against him, on the basis of prosecutorial delay. The alleged offences are said to have occurred at a time when the Applicant was sixteen years old, and thus a “child” as defined under the Children Act 2001. It is contended that had the Garda investigation been conducted expeditiously, then the Applicant would have been entitled to have the charges against him determined in accordance with the Children Act 2001. This would have afforded the Applicant certain statutory entitlements in respect of inter alia anonymity, sentencing principles, and a mandatory probation report. The benefit of these statutory entitlements is not now available in circumstances where the Applicant reached the age of majority prior to the trial of the offences.

2 These judicial review proceedings arise against a legislative backdrop whereby the qualifying criterion for 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). It is perhaps surprising that the legislation does not expressly address the position of an alleged offender who has transitioned from being a “child” (as defined) to an adult between the date on which the offences are said to have occurred and the date of the hearing and determination of criminal charges arising from those alleged offences. Such an interregnum will arise in a significant number of cases, even allowing for prompt Garda investigations. For example, if an offence is alleged to have been committed by an individual who is a number of weeks shy of his or her eighteenth birthday, it is unrealistic to expect that the offence would be investigated, and the prosecution completed, prior to that birthday. It would have been helpful if the legislation indicated what is to happen in such circumstances.

3 At all events, 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] 1 I.R. 656 and Donoghue v. Director of Public Prosecutions [2014] 2 I.R. 762.

4 The case law indicates that the existence of blameworthy prosecutorial delay will not automatically result in the prohibition of a criminal trial. Rather, 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. Factors to be considered include inter alia (i) the length of delay itself; (ii) the age of the accused at the time the alleged offences occurred; (iii) the loss of statutory safeguards under the Children Act 2001; (iv) the stress and anxiety, if any, caused to the child as a result of the threat of prosecution hanging over them; and (v) any prejudice caused to the conduct of the defence.

FACTUAL BACKGROUND

5 The Applicant has been charged with two offences arising out of an incident said to have occurred on 11 June 2017. In brief, it is alleged that the Applicant robbed a named individual of his wallet and mobile telephone, and that, during the course of the robbery, the Applicant produced a knife and threatened the alleged victim, saying “I'm gonna stab yon, you're getting it tonight”.

6 The two offences charged are as follows. First, an offence of robbery pursuant to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. A person is guilty of the offence of “robbery” if he or she steals, and immediately before or at the time of doing so, and in order to do so, uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. A person guilty of robbery is liable on conviction on indictment to imprisonment for life.

7 Secondly, an offence pursuant to section 11 of the Firearms and Offensive Weapons Act 1990. This section makes it an offence to produce, in a manner likely unlawfully to intimidate another person, any article capable of inflicting serious injury, while committing or appearing to be about to commit an (other) offence.

8 The details of the police investigation have been summarised in an affidavit sworn by Garda Laura O'Brien. (A further affidavit has been sworn by the relevant official in the Office of the Director of Public Prosecutions). The key events in the chronology are as follows.

11 June 2017	Date of alleged incident
27/28 July 2017	Garda O'Brien views CCTV footage and identifies the Applicant as a suspect
5 September 2017	Application to arrest the Applicant in circumstances where he was then detained in Oberstown on other offences (Section 42 of the Criminal Justice Act 1999)
8 September 2017	Another co-accused is arrested and questioned
21 November 2017	Applicant released from Oberstown
5 December 2017	Applicant is arrested, by appointment, on suspicion of robbery
18 December 2017	Applicant's brother is interviewed
May 2018	File forwarded to Detective Sergeant
3 June 2018	File amended and returned to supervising Detective Sergeant
30 July 2018	Superintendent reviews file and directs a youth referral
5 August 2018	PULSE referral to Garda Youth Diversion Office
24 September 2018	Garda Youth Diversion Office request “skeleton file”
29 October 2018	Juvenile Liaison Officer's suitability report
30 October 2018	Full investigation file sent to Garda Youth Diversion Office
1 January 2019	File hand delivered to Office of the DPP
31 January 2019	Email from Office of the DPP seeking copy of particular statement
19 February 2019	Applicant's solicitor writes to Kevin Street District Office (Slot for sentencing before the Circuit Court on 11 April 2019)
28 March 2019	Office of the DPP issues a direction that Applicant be charged
9 April 2019	Applicant arrested at Oberstown and brought before District Court. District Court declines jurisdiction pursuant to section 75 of the Children Act 2001
12 April 2019	Applicant turns eighteen years old

9 Garda O'Brien explains that the investigation file had gone missing for a period of time.

“20. I am not able to accurately provide for every movement of this file from the time I forwarded the file to Detective Sergeant O'Brien on the 3 ^rd June 2018 until it's physical return to my custody on the 31 ^st December 2018. The dates set out in the paragraphs immediately above for the work done on the file, after I sent the file to Detective Sergeant O'Brien on the 3 ^rd of June 2018. are taken from date stamps placed on the original file as it was forwarded from various parties and from updates to the PULSE system. I am aware that for a time the file in this case could not be located. I carried out numerous enquiries with different offices in an effort to locate this file. This file and accompanying referrals appeared to have been misplaced by a member of Garda staff during a transition from Kevin Street to the Juvenile Liaison Officer and National Juvenile Offices. I made every effort by means of phone calls, emails and physical searches to locate the file. During this period of time it is my understanding that the forwarding Garda member was absent on...