F (B) v DPP

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Geoghegan
Judgment Date22 Feb 2001
Neutral Citation[2001] IESC 18
Docket Number[S.C. No. 108 of 2000]

[2001] IESC 18

SUPREME COURT

Keane C.J.

Murphy J.

Geoghegan J.

108/2000
F (B) v. DPP
BETWEEN/
B.F.
Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

Citations

BACKING OF WARRANTS (REPUBLIC OF IRL) ACT 1965 S1 (UK)

CRIMINAL PROCEDURE ACT 1967

CHILDRENS ACT 1908

SUMMARY JURISDICTION OVER CHILDREN (IRL) ACT 1884

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

DEVANEY V SHIELDS & DPP 1998 1 IR 230

CONSTITUTION OF THE UNITED STATES SIXTH AMENDMENTH

O'CONNELL, STATE V FAWSITT 1986 IR 362

BAKER V WINGO 1972 407 US 514, 531

DPP V BYRNE 1994 2 IR 236

C (P) V DPP 1999 2 IR 25

P (P) V DPP 2000 1 IR 403

Synopsis:

Criminal Law

Sexual offences; delay; juvenile offender; appellant had been charged with sexual offences and was fourteen years old at time of their alleged commission; whether delay of three years and nine months in initiation of prosecution excessive and inexcusable, in particular where well-founded hope that appellant might not be tried; whether, in the case of a criminal offence allegedly committed by a child or young person, special duty on State authorities over and above normal duty of expedition to ensure a speedy trial.

Held: Appeal allowed; injunction ordered against respondent from proceeding further with the prosecution.

F (B) v. DPP - Supreme Court: Keane C.J., Murphy J., Geoghegan J. - 22/02/2001 - [2001] 1 IR 656

The appellant had been charged with a number of sexual offences allegedly committed against two girls when he was aged 14. After some delay a criminal prosecution against him was commenced. The High Court refused him an order of prohibition restraining the respondent from proceedings with the prosecution and the appellant appealed. The Supreme Court allowed the appeal holding there had been an altogether unnecessary delay in relation to seeking the appellant’s extradition.

1

Mr. Justice Geoghegan delivered the 22nd day of February 2001 [nem diss]

2

This is an appeal from an order of the High Court (Roderick Murphy J.) refusing judicial review in the form of an order of prohibition or an injunction restraining the respondent from proceeding with the prosecution of sex offences against the appellant, who was a child at the time of the alleged crimes. I will be refering to the grounds for seeking judicial review in more detail but the main ground was alleged excessive delay on the part of the State authorities.

THE FACTS
3

The appellant has been charged with oral and anal rape and with sexual assault upon two very young girls in the period April/May 1995. At the time of the offences one of the girls was aged seven and the other was aged six. The appellant was fourteen years of age at the time of the offences. Within a short time of the initial offences the appellant was requested to visit the local garda station for questioning in the company of his father. He made a statement in which, broadly speaking, he admitted the sexual activity but claimed that nothing was done under coercion, a factor which would not, of course, afford him any legal defence at a trial. It is probably fair to infer from the evidence that the matter was initially handled sensitively by the garda authorities who following on the interview immediately put the appellant in touch with the North Eastern Health Board. He was interviewed by Paula Long, Senior Clinical Psychologist in the Health Board between the 22nd of June and the 16th of August, 1995 and his parents were interviewed at the same period. No charges were brought at that time.

4

It is claimed by his mother in an affidavit that threats were made against his family because of the allegations and the gardaí had to be called out to protect him on a few occasions. There was allegedly a threat to burn the house in which they were living without regard for who would be in it at the time. A three-year-old brother of the appellant was allegedly attacked and injured with a large stone. In the same affidavit the appellant's mother says that the family was informed by the Garda Síochána that a petition had been presented to the local County Council requesting that her family be removed from the housing estate in which they lived. She apparently indicated to the gardaí that she was considering moving back to England where they had originally lived and she claims that the gardaí approved of that idea and also indicated that because all the people concerned with the allegations were children the appellant would probably not be charged with any offence. She says that they referred to a similar incident that had occurred in the same estate involving two young boys where it seems to have been accepted that there had been illicit sex between the two boys but no charges were preferred. That incident had occurred a short time before the incident involving the appellant. It is only right to say that the gardaí in replying affidavits dispute this version of events and deny that any opinion was expressed by them to the effect that the appellant would not be charged or that they gave any advice about returning to England. The gardaí claim that the idea of returning to England came from the mother. Strictly speaking in the absence of oral evidence or cross-examination, it is not possible to resolve this conflict and, of course, the onus of proof is always on an applicant. But I think it fair to infer from the affidavits taken as a whole that the gardaí did not discourage the appellant's mother from returning to England and furthermore her account about the other incident is borne out in the affidavit of Sergeant Noone, who at paragraph 31 concedes that a similar offence had occurred involving two young boys and that no charges were preferred but he makes the distinction that in that case the parents of the alleged victim had agreed to a caution whereas the parents of the complainants in this case did not agree to any such course of action. Indeed, it is obvious that the parents of the victims in this case have been pressing for a prosecution. While it may be perfectly reasonable for the gardaí or the D.P.P. to regards as a relevant factors the consent of the parents of a victim to the alleged culprit being let off with a caution, the converse is not the case. It would not be a proper exercise of the powers of the prosecution authorities to proceed with a prosecution against a child or young person where other more suitable courses of action might be open merely because the parents of the victims were insisting upon it. There is no direct evidences of that here but the general tenor of the evidence does lead to a suspicion that the wishes of the victim's parents did play a major part in the decision making process.

5

As to whether the appellant's mother was advised to go to England or not by the gardaí is not great importance. It is quite clear that in no sense was she a fugitive and that at all material times the gardaí knew where the appellant was living in London. From September, 1995 until the 18th of March, 1996 he was in one particular address in London and the family moved to another on that date. The appellant's twenty-five-year old stepsister remained at the original Irish address and contracted the gardaí to provide them with the relevant address and telephone number in England.

6

The English police and social services were aware of the appellant's alleged involvement in the incidents and there was contact between them and the Irish social services and An Garda Síochána. The appellant was on a register known as the risk register in England but his name was removed from this in or about September/October, 1997. According to the mother the family was regularly telephoned by the gardaí enquiring how they and the appellant were. In or around March, 1996 however, the mother received a telephone call from the local gardaí indicating that they would be incoming for the appellant and that an application for this purpose would be made to the local District Court.

7

On the 22nd of November, 1996 the family were telephoned by the local sergeant and told that a detective sergeant, Martin O'Neill, of the Dublin extradition section had made an application for extradition in the local District Court. The mother then instructed an English solicitor who got into communication with the extradition section of the gardaí in Dublin. There were also some discussions with the extradition squad in Scotland Yard. For a long time no further indication was given that the extradition application was in fact made, and the mother avers in her affidavits that the appellant continued to gain hope during that period that no such application would be made. The mother was attending child protection meetings at which her children's various teachers were present. There was a detective constable who attended some of these meetings and at a meeting in April, 1997 be indicated that he was in contact with the gardaí and that they were " considering" extraditing the appellant. At the next meeting in the following October the same detective constable told the mother that the Irish authorities would be applying for extradition.

8

Upon leaving school in September, 1997, the appellant had expressed a wish to join the Army and decided that he would like to do a one year course in college prior to this. To this end he started a course in art and design in September, 1997.

9

The mother goes on to depose in her affidavit that on the 2nd of February, 1998, without prior notification, police officers visited her home in order to make arrangements for the arrest of the appellant. However, he was subsequently arrested by arrangement outside the courthouse on the following day, i.e., the 3rd of February, 1998. He was arrested on foot of warrants dated the 7th day of July, 1997, which warrants were not endorsed pursuant to section 1 of the Backing of Warrants (Republic of Ireland) Act, 1965...

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