DPP v E

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Birmingham P.,McCarthy J,Kennedy J.
• Judgment Date: 15 April 2020
• Neutral Citation: [2020] IECA 101
• Docket Number: [431/2019]
• Date: 15 April 2020

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

L.E.

APPELLANT

[2020] IECA 101

Birmingham P.

McCarthy J.

Kennedy J.

[431/2019]

THE COURT OF APPEAL

Prosecution – Prohibition – Prosecutorial delay – Appellant seeking to prohibit the further prosecution of criminal charges pending against her on the basis of prosecutorial delay – Whether the interests of justice would be served by prohibiting the trial

Facts: The appellant appealed to the Court of Appeal from a judgment of the High Court delivered on the 28th of June, 2019, whereby the court dismissed an application to prohibit the further prosecution of criminal charges pending against the appellant on the basis of prosecutorial delay. The alleged offences were said to have occurred at a time when the appellant was 15 years old and thus a “child” as defined under the Children Act 2001. It was contended that had the criminal investigation been conducted expeditiously, then the appellant would have been tried prior to her 18th birthday. This would have afforded the appellant certain statutory safeguards including, inter alia, anonymity. The benefit of these statutory safeguards was not available in circumstances where the appellant had reached the age of majority prior to the trial of the offences.

Held by the Court that the conclusion of the trial judge that there was no culpable or blameworthy prosecutorial delay was one that was open to him. The Court held that this was not a case where the interests of justice would be served by prohibiting the trial.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 15 ^th day of April 2020 by Birmingham P.

1 This is an appeal from a judgment of the High Court (Simons J.) delivered on the 28 ^th of June, 2019, whereby the court dismissed an application to prohibit the further prosecution of criminal charges pending against the appellant, LE, on the basis of prosecutorial delay.

2 The alleged offences are said to have occurred at a time when the appellant was 15 years old and thus a “child” as defined under the Children Act 2001. It is contended that had the criminal investigation been conducted expeditiously, then the appellant would have been tried prior to her 18 ^th birthday. The appellant was born on the 31 ^st of October, 1999, meaning her 18 ^th birthday fell on the 31 ^st October of 2017. If the trial had taken place before the end of October 2017 the charges against her would have been determined in accordance with the Children Act 2001. This would have afforded the appellant certain statutory safeguards including inter alia anonymity. The benefit of these statutory safeguards is not now available in circumstances where the appellant has reached the age of majority prior to the trial of the offences.

3 The qualifying criterion for the 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). Thus, an alleged offender who has transitioned from being a “child” (as defined) to an adult between (i) the date on which the offences are said to have occurred, and (ii) the date of the hearing and determination of criminal charges arising from those alleged offences, cannot avail of most of the procedural protections under the Act. The principal exception is in respect of the right to have the record of a criminal conviction expunged under Section 258 of the Children Act 2001 where the relevant date is the date of the offence. This would mean that if the appellant was tried and convicted of an offence as a minor, then she could later have that conviction expunged.

Background

4 The charges that the appellant faces arise out of an alleged incident said to have occurred on the evening of the 19 ^th of September 2015, whereby a young male, K.W, was assaulted and stabbed. It is alleged that the appellant and the complainant young male had an altercation earlier that evening when the complainant intervened in a dispute between the appellant and another young female. The appellant is alleged to have said to the complainant: “I'm going to get you fucking sliced up”. It is said that a short time later, the appellant approached the complainant along with a brother of hers and a number of other young males, whereby the complainant was assaulted and stabbed. He was taken to hospital by ambulance and suffered a number of serious injuries. In the aftermath of the incident, the injured party was treated in Beaumont hospital, where he was found to have sustained multiple stab wounds, including a punctured lung and several other more minor injuries. The Book of Evidence contains a medical report which details that K.W has been severely affected, physically, as a result of the assault, and has also missed out on a soccer scholarship in the United States as a result. He was seventeen years of age at the time of the incident.

5 The appellant, her brother, and four other individuals were subsequently charged with offences arising out of the incident just described. The appellant has no previous convictions. The appellant has been charged with the following:-

i) Making a threat to kill, without lawful excuse, by any means, intending the other (the complainant) to believe it would be carried out, to kill or cause serious harm to that other, contrary to s.5 of the Non-Fatal Offences Against the Person Act, 1997;

ii) Violent disorder, contrary to s.15 of the Criminal Justice (Public Order) Act, 1994;

iii) Assault causing harm, contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997.

6 The High Court judicial review proceedings were instituted on Monday, 24 July 2017. An ex parte application for leave to apply for judicial review was moved that day before the High Court (Heneghan J.). The High Court ordered that the Director of Public Prosecutions (“the DPP”) be put on notice of the application for leave to apply, and the matter was adjourned for hearing to the following Monday, the 31 ^st of July 2017. In the interim, an affidavit was filed on behalf of the DPP by Garda Proudfoot. On the adjourned date, the High Court (Faherty J.) granted leave to apply for judicial review. It seems that the intention at that stage was that the judicial review proceedings would be case managed by Faherty J., with a view to ensuring that the judicial review would be heard and determined prior to the trial before the Circuit Criminal Court, which had been scheduled for the 5 ^th of December 2017. To this end, a tight timetable for the exchange of pleadings was directed, with both parties being required to file pleadings and affidavits during the Long Vacation. The state of play as of the date the judicial review proceedings were instituted on the 24 ^th of July 2017 was as follows. First, the appellant had not yet reached the age of eighteen years and was, accordingly, still a “child” for the purposes of the Children Act 2001. Secondly, the appellant had had the benefit of one of the most important procedural benefits under the Children Act 2001, the potential of a hearing under Section 75. This provision allows the District Court to deal summarily with a “child” charged with any indictable offence unless the court is of opinion that the offence does not constitute a minor offence fit to be tried or dealt with summarily. This allows for the possibility of an indictable offence to be disposed of on a summary basis. However, in the present case the District Court declined jurisdiction on the facts of the case.

7 The appellant had been allocated a trial date on the 5 ^th of December 2017. Thus, the appellant would have had the charges against her heard and determined within a period of two years and two months from the date of the alleged incident on the 19 ^th of September 2015. The reasonableness of this timescale has to be assessed against a background where the appellant had not made any admissions of guilt, the alleged offences involved six suspected offenders and thus entailed a complex investigation, and, the offences alleged were of a very serious nature. On the 28 ^th of November 2017, the appellant applied to vacate the trial date of the 5 ^th of December 2017, due to a family bereavement, one of her brothers had very sadly been murdered. The trial was later allocated a date of the 18 ^th of February 2019. On the 16 ^th of January 2019, the appellant applied to vacate that trial date, as she was pregnant and due to give birth. The appellant subsequently gave birth to a baby on the 19 ^th of January 2019. On the 22 ^nd of May 2019, the appellant's partner and father of her child was also murdered.

8 The High Court was satisfied that had matters proceeded as intended i.e. with a trial taking place on the 5 ^th of December 2017, then there would be no question of a finding of culpable or blameworthy prosecutorial delay. However, the trial did not proceed as scheduled on that date. This was as a consequence, in part at least, of the institution of the judicial review proceedings. As a result of various delays in the pursuit of the judicial review proceedings, the criminal charges have been further delayed until a date in 2020. Therefore, as a result, the appellant and her co-accused will find themselves in the position of having to face charges some five years after the date of the alleged incident.

9 In the High Court, the explanation offered on behalf of the prosecuting authorities for this period of delay is that the appellant's mother had led the Gardaí to believe that the appellant had emigrated to England in late September 2015. It was alleged that the appellant's mother informed Garda McGrath that the appellant had gone to England to reside with her sister, and would be attending school there. The appellant's mother, Ms T, is also said to have...