DPP v Sean Furlong

• Jurisdiction: Ireland
• Judge: Birmingham P.,Edwards J.,Binchy J.
• Judgment Date: 04 April 2022
• Neutral Citation: [2022] IECA 85
• Court: Court of Appeal (Ireland)
• Docket Number: [2021 No. 167]

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Sean Furlong

Applicant

[2022] IECA 85

Birmingham P.

Edwards J.

Binchy J.

[2021 No. 167]

THE COURT OF APPEAL

CIVIL

Prosecution – Assault causing harm – Delay – Respondent appealing against injunction restraining continued prosecution of applicant – Whether the interests of justice were served by permitting the prosecution to proceed

Facts: The applicant, Mr Furlong, applied by way of judicial review for, inter alia, an injunction restraining his continued prosecution on two charges of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, on the ground of the delay that had occurred. Leave was granted on 29th April 2019. The matter came on for hearing in the High Court and, on 12th May 2021, the application for judicial review was successful. The High Court was satisfied that there had been culpable prosecutorial delay in the case, and that as a result, the applicant had suffered significant prejudice by not having the matter dealt with when he was a minor. The High Court was further of the view that when a balancing exercise was carried out, the prejudice to the applicant which had been identified outweighed the public interest in the prosecution of the offences charged, notwithstanding that they were serious in nature. Accordingly, the injunctions sought were granted. That decision was appealed to the Court of Appeal by the respondent, the Director of Public Prosecutions. The Director contended that the approach of the High Court saw the judge fall into error and enter into micromanagement of Garda investigations.

Held by the Court that while there was delay on the part of the Gardaí, the chronology which played out was materially contributed to by the suspect; that being so, having regard to the seriousness of the offence and the public interest that there was in having offences of such seriousness prosecuted, the Court came to a different view than the judge did in the High Court. The Court was of the view that the balancing exercise required led to a conclusion that the interests of justice were served by permitting the prosecution to proceed.

The Court allowed the appeal.

Appeal allowed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of the President delivered (electronically) on the 4 ^th day of April 2022 by Birmingham P.

1 . On 22 ^nd May 2017, an incident occurred at the Centra shop on La Touche Road in Bluebell, Dublin. It is alleged by the Director that a group of youths entered the shop with a view to stealing items, and that among that group was the applicant. He was asked to leave and became abusive and aggressive towards a security guard. It is alleged that he threw a glass bottle at the security guard which hit him, but was then deflected and struck a customer, a 69-year old woman, in the face. She suffered significant injuries, including a damaged cornea, as well as extensive general bruising and swelling.

2 . In the aftermath of the incident, the applicant was identified as a suspect. He had just turned seventeen years of age at the time that the alleged incident occurred and attained his majority on 17 ^th May 2018.

3 . On 22 ^nd August 2018, some fifteen months after the date of the offence, the applicant was charged. The applicant subsequently applied by way of judicial review for, inter alia, an injunction restraining his continued prosecution on two charges of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, on the ground of the delay that had occurred. Leave was granted on 29 ^th April 2019.

4 . The matter came on for hearing in the High Court and, on 12 ^th May 2021, the application for judicial review was successful. The High Court was satisfied that there had been culpable prosecutorial delay in the case, and that as a result, the applicant had suffered significant prejudice by not having the matter dealt with when he was a minor. The High Court was further of the view that when a balancing exercise was carried out, the prejudice to the applicant which had been identified outweighed the public interest in the prosecution of the offences charged, notwithstanding that they were serious in nature. Accordingly, the injunctions sought were granted. This decision has now been appealed to this Court by the Director. In circumstances where the applicant in the judicial review proceedings succeeded, and is therefore the respondent to this appeal, I propose to refer to the original applicant for judicial review as “the suspect” or “the accused”, and to the original respondent to the application as “the Director”.

5 . The High Court identified – correctly, in my view, and uncontroversially – that the issue for determination was whether there had been culpable or blameworthy prosecutorial delay, and that the appropriate approach was to conduct a balancing exercise between: (a) the public interest in having serious charges investigated and prosecuted; and (b) any prejudice to the applicant that had arisen by way of the delay, if delay was found. If the Court was minded to refuse the order of prohibition sought, it could then consider whether there was another form of relief available to it which would address any possible prejudice.

6 . It is necessary, at this stage, to examine the sequence of events in greater detail. The accused was born on 17 ^th May 2000 and the alleged offences took place on 22 ^nd May 2017 i.e., some five days after he had turned seventeen. On 17 ^th May 2018, the suspect attained his majority. On 22 ^nd August 2018, the suspect was charged with an offence of assault causing harm to the female injured party. He was subsequently charged with a second offence of assault causing harm on 19 ^th December 2018. A book of evidence was served on 13 ^th February 2019. Thereafter, the accused failed to appear before the Circuit Court when on bail and a warrant was issued which was executed on 18 ^th April 2019. Then, on 29 ^th April 2019, the accused sought and obtained leave to bring judicial review proceedings.

The Period Prior to Charge

7 . On the date of the offence, 22 ^nd May 2017, Gardaí attended at the scene, spoke to both injured parties and viewed CCTV footage. The Garda who had attended the scene, Garda Karl O'Reilly, having observed a number of youths, gave a description of them to Command and Control. At about 8.10pm, approximately an hour after the alleged offences had been committed, the suspect was arrested by Garda O'Reilly for an offence contrary to s. 6 of the Criminal Justice (Public Order) Act 1994 and was taken to Kilmainham Garda Station.

8 . The next significant development occurred on 10 ^th July 2017 when a statement was taken from the first injured party, the woman who had suffered facial injuries. In the course of an affidavit sworn by Garda O'Reilly in the context of these proceedings, he stated that “it was appropriate and indeed normal practice” to wait for a period of time before seeking to take a statement from the injured party in order to allow her to receive medical treatment and to give her some time to process the incident in which she had been involved. It was pointed out that the statement of the injured party, which appears in the book of evidence, refers to the fact that she was afraid when she went out and that she experienced acute flashbacks and panic attacks after the incident. The High Court judge accepted the explanation given by the Garda for the fact that seven weeks were allowed to pass before a statement was taken from the female injured party. The Court was of the view that the injured party had suffered significant injuries and given that the assault had occurred completely out of the blue, it was understandable that she would have been very traumatised by the event. Having regard to her injuries and to her age (69 years), the Court concluded that it was reasonable for Gardaí to wait as long as they did before taking a statement and that there was no culpable delay in this instance.

9 . The next development in the investigation occurred on 3 ^rd October 2017 when Garda O'Reilly spoke with the suspect's mother at her home address where the suspect had been residing. An appointment was made for the suspect and his mother to attend at Kilmainham Garda Station on 6 ^th October 2017 at 1 ^pm where it was intended that he would be arrested by appointment in relation to the investigation. As the suspect was a juvenile, this procedure of an arrest by way of appointment was regarded as the more satisfactory manner in which to progress the investigation from both the perspective of the Gardaí and the suspect himself. However, neither the suspect nor his mother attended for the appointment that had been made and no explanation for the non-attendance has ever been offered. In that context, Garda O'Reilly points out that it is of relevance that the suspect has a history of failing to attend court. The suspect first failed to attend in the District Court on 23 ^rd November 2018, and on 22 ^nd March 2019, a bench warrant was issued for his arrest when he failed to appear in the Circuit Court in respect of this case.

10 . There is no recorded activity between 10 ^th July 2017 (when the statement from the female injured party was taken) and 3 ^rd October 2017 (when the appointment to attend at the Garda station was made). Commenting on this timeframe, the High Court observed that no explanation had been given by Garda O'Reilly for this period of complete inactivity, adding that it was not clear why the Garda had not used that period to obtain a statement from the security guard and from an independent witness. The statement from the independent witness who was present at the shop was not taken until 26 ^th April 2018, and the statement from the second injured party, the security guard, was taken only on 6 ^th May 2018....