DPP v The Dublin Metropolitan District Court

JudgeMr Justice Cian Ferriter
Judgment Date12 November 2021
Neutral Citation[2021] IEHC 705
Docket NumberRecord No. 2021/535JR
CourtHigh Court
The Director of Public Prosecutions
The Dublin Metropolitan District Court
Sitting as the Children Court and DA

[2021] IEHC 705

Record No. 2021/535JR



Judgment of Mr Justice Cian Ferriter delivered this 12th day of November 2021


In these proceedings, the DPP seeks relief by way of judicial review against decisions of the Dublin Metropolitan District Court sitting as the Children Court (“the District Court” or “the Children Court”, as appropriate) made under, or relating to, Section 75 Children Act, 2001 (“s.75”). s.75 is a provision which empowers a District Judge sitting as the Children Court to deal summarily with indictable offences subject to being satisfied as to various criteria specified in the section.


The material background is as follows. The Second Named Respondent (“DA”) came before the Dublin Metropolitan District Court, sitting as the Children Court, on 8th March, 2021 in respect of two charges arising out of the same incident which occurred on the night of 17th January/early morning of 18th January, 2020. DA was charged with one offence of rape contrary to Section 4 of the Criminal Law (Rape) (Amendment) Act, 1990 (“the s.4 rape offence”) and one offence of sexual assault contrary to Section 2 of the same Act (“the s.2 offence”). He was 15 at the date of the alleged offences and on the date he first appeared before the Children Court; the alleged victim was 16 at the date of the alleged offences. The matter was adjourned back to 19th April, 2021 to deal with a hearing on the question of the District Court's jurisdiction under s.75.


As the terms of s.75 are central to the issues in these proceedings, I propose to set out the relevant parts of the section at this juncture:-

[(5) and (6) not relevant to the issues in this case.]

  • “75. (1) Subject to sub-section (3), the Court may deal summarily with a child charged with any indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, unless the Court is of opinion that the offence does not constitute a minor offence fit to be tried summarily or, where the child wishes to plead guilty, to be dealt with summarily.

  • (2) In deciding whether to try or deal with a child summarily for an indictable offence, the Court shall also take account of –

    • (a) the age and level of maturity of the child concerned, and

    • (b) any other facts that it considers relevant.

  • (3) The Court shall not deal summarily with an indictable offence where the child, on being informed by the Court of his or her right to be tried by a jury, does not consent to the case being so dealt with.

  • (4) In deciding whether or not to consent under sub-section (3), a child may obtain –

    • (a) the assistance of his or her parent or guardian or, if the child is married to an adult, his or her spouse, or

    • (b) where the parent or guardian or adult spouse of the child does not for any reason attend the relevant proceedings, the assistance of any adult relative of the child or other adult who is accompanying the child at the proceedings”.

The 19th April 2021 Hearing

At the hearing before the Children Court on 19th April, 2021, the DPP was represented by a solicitor with extensive experience of appearing for the DPP before the Children Court. Likewise, DA was represented by a solicitor with extensive experience of appearing for accused children before the Children Court. At the hearing, DA was accompanied by his mother who sat beside him. Both DA and his mother contributed at various points in the hearing consistent with the degree of informality which normally obtains at such hearings.


A full transcript of the hearing before the Children Court on 19th April, 2021 has been put before this Court. There is accordingly no dispute as to precisely what transpired before the Children Court on that date.


The hearing commenced with the Registrar introducing the hearing as a s.75 hearing “ under Section 2”, i.e. a s.75 hearing dealing with the question of whether the s.2 sexual assault offence should be dealt with summarily before the Children Court.


The presiding District Judge introduced matters by stating that this seems to be in for a Section 75 matter, a hearing in relation to a Section 2 matter ….and for the Book in relation to the other matter” (the latter being a reference to the s.4 rape offence charge which was statutorily required to be dealt with before a jury in the Central Criminal Court). The DPP's solicitor indicated that the book had not been finalised as we are awaiting the outcome of the Section 75 hearing to know whether a sexual assault is going to form a part of a book.


The prosecuting Garda then gave evidence of the incident as alleged by the complainant on the date of the offence. Following the prosecuting Garda's summary of the detail of the complaints, there was an interjection by DA. The District Judge responded for the benefit of DA and his mother to say that all I'm doing is hearing the alleged facts at the moment and deciding whether this Court or the Circuit Court should deal with the matter and made clear that she was not hearing the case itself. Following further exchanges with DA's mother, the District Judge again stated that she was only deciding whether it's an appropriate case to remain in this Court ………..or go to the higher Court”.


At that point, DA interjected to say that “ I don't need to go to a higher Court man”.


The prosecuting Garda was then cross-examined by Mr. Keenan, solicitor for DA. During the course of this cross-examination, Mr. Keenan put to the prosecuting Garda that the accused in his prepared statement to the investigating Gardaí had accepted that there was sexual activity between himself and the alleged injured party but maintained that it was consensual. He also put to the prosecuting Garda that the accused was a young person that suffered with autism, that he had no previous convictions and that there were significant delays in securing trial dates in the Circuit Court and Central Criminal Court as a result of COVID-related delays, all of which was accepted by the prosecuting Garda.


Mr. Keenan then made a brief submission on behalf of DA emphasising that the accused was a 15 year old suffering from autism at the time of the alleged incident. He emphasised the fact that the accused suffered from anxiety and depression which had been heightened as a result of having the charges hanging over him. He submitted that that state of affairs could be heightened further if the matter was sent forward with the potential of a trial date being pushed beyond his 18th birthday in light of the significant delays before the Courts because of COVID-19. He submitted that the Court should keep the s.2 charge in the Children Court in all the circumstances.


Mr. Michael Murphy, a solicitor in the Office of the Chief Prosecution Solicitor, then made submissions on behalf of the DPP. His principal submission was that the alleged incident giving rise to the charges was a traumatic event for the complainant as well as for the accused, and that for there to be two trials arising from the two charges would be a duplication of that trauma for both parties. He submitted that the two matters arise from the same events and submitted there was an inter-dependence between the two offences on the basis that if the complainant's evidence was accepted, the s.2 sexual assault took place in order for the accused to be in a position to commit the alleged s.4 rape offence. Mr. Murphy also made submissions as to the gravity of the circumstances of commission of the alleged offences, if true, on the basis that the accused was alleged to have known that the complainant was intoxicated and believed, because of her intoxication, he could get away with it. He concluded his submission by advocating that “ the two matters should travel together”.

The District Judge's 19th April 2021 Ruling and Order

The District Judge then made her ruling on the s.75 hearing as follows:-

“This Court will retain jurisdiction of the matter and you reserved your position obviously in relation to the book. So, I'm keeping the Section 2 matter in this Court. It's a matter for the Director to decide what she wants to do on the Section 4. I'll put the matter back for a number of weeks”.


The District Judge then put the matter back for four weeks on the basis that on that occasion, it would hopefully be to indicate a plea or get a date on that occasion. The District Judge also extended time if necessary for service of the book of evidence in respect of the s.4 matter.


The Court Order of 19th April, 2021 was perfected on 8th June, 2021. That Order reads, in material part, that:-

“At the sitting of the Court at Court No. 55, Metropolitan Children's Court, Smithfield, Dublin 7 in the Dublin Metropolitan District on the 19-Apr-2021, the above entitled proceedings having appeared in the Court's List in respect of a complaint that the above named accused of [address set out] on the 17-Jan-2020 – 18-Jan-2020 at [locus of alleged incident] in the said District Court Area of Dublin Metropolitan District did sexually assault one [complainant's name]

Contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.

It was adjudged that the said accused, a child within the meaning of the Children's [sic] Act, 2001, and above the age of 11 years, be remanded on continuing bail, to appear before a sitting of the Dublin Metropolitan District Court sitting at Court No. 55 on 13-May-2021 at 10.30, [and inserted in handwriting] District Court will retain jurisdiction”.

Conduct of s.75 hearings in practice

I will interpose in the chronology of material events at this...

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3 cases
  • D v The Director of Public Prosecutions
    • Ireland
    • Court of Appeal (Ireland)
    • 16 November 2023
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