F (B) v DPP
| Jurisdiction | Ireland |
| Judge | Mr Justice Roderick H. Murphy |
| Judgment Date | 21 March 2000 |
| Neutral Citation | [2000] IEHC 27 |
| Court | High Court |
| Docket Number | No. 30 JR/1999 |
| Date | 21 March 2000 |
[2000] IEHC 27
The High Court
Between
and
Citations:
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4
DEVANNEY V SHIELDS & DPP 1998 1 IR 243
CHILDRENS ACT 1941 S28
SUMMARY JURISDICTION OVER CHILDREN (IRL) ACT 1884 S5
CHILDRENS ACT 1908 S133(6)
CHILDRENS ACT 1908 S102(3)
CONSTITUTION ART 38.1
O'CONNELL, STATE V FAWSITT 1986 IR 362
D V DPP 1994 2 IR 465
DPP V BYRNE 1994 2 IR 236
C V DPP 1999 2 IR 45
P (P) V DPP UNREP GEOGHEGAN 5.10.1999
MCKENNA V DPP UNREP KELLY 14.1.2000
O'R V DPP 1997 2 IR 273
HEALY, STATE V DONOGHUE 1976 IR 325
KEELY V MORIARTY & DPP UNREP QUIRKE 7.10.1997 1998/8/2282
Synopsis
Administrative Law
Administrative; judicial review; delay; applicant seeks order prohibiting his further prosecution by respondent or, alternatively, an injunction restraining further steps being taken by respondent in respect of certain charges; these charges currently pending before Central Criminal Court; whether delay in prosecution was inordinate or inexcusable.
Held: Application dismissed.
F (B) v. DPP - High Court: Murphy J. - 21/03/2000
The applicant had been charged with a number of sexual offences. The offences had allegedly occurred when the applicant was 14 and the alleged victims were aged seven and six. The applicant claimed that significant delays had arisen in the prosecution of the said offences and that accordingly an order of prohibition should be granted. Murphy J held that there had been delays in the prosecution of the offences, some of which were due to the actions of the applicant. Overall the delays involved had not been inordinate or inexcusable and accordingly the application would be refused.
Judgment of Mr Justice Roderick H. Murphy delivered on the 21st day of March, 2000 .
This is an application for Judicial Review, in which the Applicant seeks an Order prohibiting his further prosecution by the Director of Public Prosecutions or in the alternative, an injunction restraining further steps being taken by the Director in respect of certain charges. These charges are currently pending before the Central Criminal Court. The date for trial is fixed for the 24th day of July, 2000.
Leave to apply for Judicial Review was granted by Mr Justice Geoghegan of the High Court on the 27th January, 1999. The grounds upon which relief is sought as set out in the Statement of Grounds therein is verified by an affidavit of Mrs J.F. the mother of the Applicant, which affidavit was sworn on the 20th day of January, 1999.
The Applicant is charged with nine separate offences alleged to have occurred in April/May 1995 when the Applicant was aged fourteen years and three months. The Complainants were two girls then aged seven and six respectively. It is alleged that the Applicant committed sexual assault and rape contrary to Section 4 of the Criminal Law (Rape) (Amendment) Act, 1990in respect of these two Complainants.
The complaints were made to the Gardai in May, 1995. The Gardai interviewed the Applicant in the presence of his father and he made a statement of admission on the 11th May, 1995 having been duly cautioned.
The Applicant and the Complainants were referred to the Community Care Service. The Applicant and his parents and the parents of the Complainants were seen by a Social Worker attached to the health board.
The matter was referred in that month of May, 1995 to the National Juvenile Office for consideration.
During that summer the Applicant and his parents were examined on several occasions by a Senior Clinical Psychologist on behalf of the health board. The psychological assessment report was requested by the Office of the DPP in July, 1995. On the 30th August this report was furnished to Sergeant K N and on the 7th September, 1995 was sent together with the Garda file to the Office of the DPP.
The Applicant and his family moved to England on the 6th September, 1995 to an address provided in advance by the Applicant's family to the Gardai.
On the 29th September, 1995 certain recommendations were made by the Office of the DPP to prosecute for Section 4 rape and sexual assault was made.
On the 12th October, 1995 the health board were asked in provide support for the Applicant on his return. This request was refused on the 19th December, 1995 and the decision sent to the State Solicitor on the 5th January 1996.
Meanwhile, sample charges were sent to the State Solicitor on the 25th October, 1995 and on the 19th January, 1996, the issue of dealing with the Applicant by means of the JLO (Juvenile Liaison Office) Scheme was again raised.
On the 23rd February, 1996 the DPP stated that the matter should proceed and that the Gardai should seek to extradite the Applicant. Information was accordingly passed to the Extradition Section Crime Branch on the 22nd March,1996. It was not until the 20th October, 1996 that the Extradition Section Crime Branch requested specimen charges as formulated by the DPP. Certain queries were raised and dealt with in the month of November.
By letter dated 12th February, 1997 the warrants and certificates prepared by the Extradition Section were corrected and it was directed that they be amended and prepared again before being issued. On the 24th March, 1997 the warrants and certificates were sent from the Crime Branch to the Superintendent and were returned for amendment at the Crime Branch on the 3rd April, 1997.
After clarification of the official name for the signing of correspondence the amended warrants and certificates were received by the Superintendent on the 22nd May, 1997. On the 7th July, 1997 the information was sworn at the District Court and on the 10th July the completed warrants and certificates were duly signed and sent to the Crime Branch. They were forwarded to the London Metropolitan Police on the 14th July, 1997.
Certain confusions raised in Devanney -v- The DPP over the appointment of Court Clerks led to the English authorities being requested not to execute the warrants until that matter was clarified in the Supreme Court in December, 1997.
Thereafter the London Metropolitan Police were requested to execute the warrants and the Applicant was arrested on the 3rd February, 1998. On the 24th February, 1998 the English Court made an extradition order.
Habeas Corpus proceedings were commenced by the Applicant and were withdrawn on the 30th June, 1998 when the Applicant agreed to return to Ireland.
The prosecuting authorities agreed not to seek delivery of the Applicant until he had finished the third level course he was undertaking in July, 1998. Accordingly, it was not until the 30th August, 1998 that the Applicant returned to Dublin and was charged before the Dublin District Court.
As mentioned above, the application for Judicial Review was brought on the 27th January, 1999. The reliefs sought were that of prohibition and injunction and staying of the prosecution pending determination of the Judicial Review proceedings.
The application was brought on the following grounds.
(a) that the Applicant had been denied the right to a trial with due expedition;
(b) that the Respondent had been guilty of delay in the prosecution of those charges and that the Applicant had been prejudiced thereby and
(c) that in the circumstances where the Applicant was told he should return to England and where he was told that it was unlikely that he would be prosecuted, the application to have him extradited to Ireland and tried there is an abuse of the process of the Court.
The grounding affidavit was sworn by the Applicant's mother, J.F., on the 20th January, 1999 a little less than a week before the Applicant's eighteenth birthday.
The statement of opposition to the application for Judicial Review was filed on the 10th May, 1999.
Opposition was on the following grounds:
1. The application had not been brought within the time limited by the Rules of the Superior Court and no adequate explanation had been offered to the Court in respect of that fact;
Without prejudice;
2. The Applicant was not informed that it was unlikely that he would be prosecuted in relation to the offences;
3. Neither the Applicant nor his family were advised by members of An Garda Siochana to move to England as alleged;
4. The Applicant had not been denied a right to a trial with due expedition;
5. The Respondent (DPP) had not been guilty of delay in the prosecution of the criminal charges proffered against the Applicant;
6. The Applicant had not been prejudiced by any alleged delay;
7. The lapse of time between the date of the alleged offences and the date of trial had been caused by a number of different factors including, inter alia, the following:
(a) Consideration of the application of the Juvenile Liaison Office Scheme;
(b) Comprehensive psychological assessment of the Applicant and his family;
(c) The proper preparation of the prosecution case;
(d) Liaison between the prosecuting authority and the relevant health board;
(e) Extradition proceedings against the Applicant;
(f) Uncertainty as to the validity of proceedings issued against the Applicant, pending the decision of the Supreme Court in Devanney -v- The DPP, relating to the appointment of District Court Clerks;
(g) The institution of Habeas Corpus proceedings by the Applicant in England;
(h) The postponement, at the request of the Applicant of his return to this jurisdiction, pending the completion, by the Applicant, of a college course in England.
8. That there is no time bar to the prosecution of the offences charged therein;
9. That the Applicant...
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