Sean Furlong v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 12 May 2021
• Neutral Citation: [2021] IEHC 326
• Docket Number: [Record No. 2019/254 JR]
• Court: High Court
• Date: 12 May 2021

Between

Sean Furlong

Applicant

and

Director of Public Prosecutions

Respondent

[2021] IEHC 326

[Record No. 2019/254 JR]

THE HIGH COURT

Prosecution – Injunction – Delay – Applicant seeking an injunction restraining his continued prosecution by the respondent – Whether there had been culpable prosecutorial delay

Facts: The applicant, Mr Furlong, applied to the High Court seeking, inter alia, an injunction restraining his continued prosecution by the respondent, the Director of Public Prosecutions, on two charges of assault causing harm, on grounds of delay. In particular, the applicant asserted that from the date of the alleged offences the respondent was on notice that the applicant was a minor, and due to blameworthy prosecutorial delay by the Gardaí and the respondent, the applicant had been deprived of the statutory protections afforded to him under the Children Act 2001, by virtue of the fact that he reached the age of majority prior to being charged.

Held by the Court that there had been culpable prosecutorial delay in this case and that as a result thereof, the applicant had suffered a significant prejudice in the loss of the opportunity to have a District Court Judge decide whether in his discretion he would deal with the matter pursuant to s. 75 of the 2001 Act; in addition, irrespective of what jurisdiction the prosecution may have proceeded in, he had lost the statutory right to anonymity due to the fact that his trial will proceed when he is an adult. The Court was satisfied that these were significant prejudices suffered by the applicant. In carrying out the balancing exercise that was required of the Court, it was satisfied that the prejudice to the applicant by the loss of these significant statutory provisions, outweighed the public interest in the prosecution of the offences, notwithstanding that they were serious in nature.

The Court proposed making an order in the terms of para. 1 of the ex parte docket, granting an injunction by way of judicial review restraining the continued prosecution of the applicant by the respondent on two charges of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 in respect of the offences alleged to have been committed by the applicant on 22nd May, 2017.

Application granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 12th day of May, 2021

Introduction

1 This is an application by way of judicial review, whereby the applicant seeks, inter alia, an injunction restraining his continued prosecution by the respondent on two charges of assault causing harm, on grounds of delay. In particular, the applicant asserts that from the date of the alleged offences the respondent was on notice that the applicant was a minor, and due to blameworthy prosecutorial delay by the Gardaí and the respondent, the applicant has been deprived of the statutory protections afforded to him under the Children Act, 2001, by virtue of the fact that he reached the age of majority prior to being charged.

2 The prosecution in question is currently pending before the Circuit Criminal Court in Dublin. It arises out of an incident that occurred on 22nd May, 2017 at a Centra shop on La Touche Road in Bluebell, Dublin. It is alleged that the applicant was with a group of youths, who had entered the shop to steal items. When the applicant was asked to leave, he became abusive and aggressive towards the security guard, and threw a glass bottle at him. This hit the security guard, and deflected away and struck a 69 year old lady, who was in the shop. She was struck in the face and sustained serious injuries, including a damaged cornea, as well as extensive bruising and swelling.

3 The applicant was born on 17th May, 2000 and had just turned 17 years of age at the time that the alleged incident took place. A statement was taken from one of the injured parties, namely the lady who suffered facial injuries, seven weeks after the alleged incident on 27th July, 2017. However, no statement was taken from the second injured party, the security guard, until almost one year after the alleged offences.

4 From the date of the statement of the first injured party, a further unexplained period of three months elapsed until 3rd October, 2017, upon which date an appointment to arrest the applicant was made with the applicant's mother. However the applicant did not keep the appointment on 6th October 2017.

5 The applicant received a sentence of detention on the 25th October, 2017 in relation to an unrelated incident. Four months elapsed from that date until the applicant was arrested on 23rd February, 2018. The applicant turned 18 years of age on the 17th May, 2018. The applicant was charged with the first s.3 assault offence on 22nd August, 2018, one year and 3 months after the date of the alleged offence. The applicant was subsequently charged with the second s.3 assault offence on 19th December, 2018, one year and 7 months after the alleged offence.

6 Leave to apply by way of an application for judicial review for the reliefs sought in the notice of motion was granted on 29th April, 2019. The issues for determination by this court, having regard to the factual matrix of the case and the relevant legal principles to be outlined later in the judgment, are as follows:-

• i) Determine whether there was culpable or blameworthy prosecutorial delay present in the case; and,

• ii) Conduct a balancing exercise as between the public interest in having serious charges investigated and prosecuted, and the prejudice to the applicant by way of the delay.

• iii) Should the court refuse to grant an order of prohibition, is there another form of relief the court could award to address any possible prejudice?

7 When undertaking the balancing exercise, the court must have regard to the length of the delay, the age of the applicant at the time of the alleged offence, the seriousness of the charge, the complexity of the case and the nature of any prejudice to the applicant. The possible prejudice to the applicant includes losing the potential of having the charges dealt with in the District Court, as opposed to in the Circuit Court; the statutory entitlement to a probation report; anonymity; and the mandatory principle that a custodial sentence be a last resort, by reason of the fact that the applicant would have been a juvenile at the date of the trial.

Chronology of the relevant dates

17th May 2000	Date of birth of the applicant
22nd May 2017	Date of alleged offences; applicant arrested and detained in respect of public order offences arising out of the same incident; Gardaí speak to the two injured parties and view the CCTV
10th July 2017	Statement taken from the first injured party, the lady who suffered facial injuries
3rd October 2017	Appointment for arrest of the applicant made with the applicant's mother
6th October 2017	Appointment for arrest not attended by the applicant
23rd October –
17th November	Investigating garda (Garda O'Reilly) attends a training course and is unavailable 2017
25th October 2017	Applicant sentenced to detention for eight months arising out of an unrelated incident
20th November 2017	Garda O'Reilly sought warrant for the detention of the applicant for interview in order to advance the investigation
2nd February 2018	Application for the warrant was made to the District Court
23rd February 2018	Applicant is detained on foot of the warrant for the purpose of investigation.
25th March 2018	Statement of garda witness (Garda Carolan) taken
26th April 2018	Statement of civilian witness taken
29th April 2018	Statement of garda witness (Garda O'Connor) taken
6th May 2018	Statement of second victim, the security guard, taken
17th May 2018	Applicant turned 18 years of age
18th May 2018	Referral made to the Garda Youth Diversion Office
30th May 2018	Suitability report sought from a Garda Juvenile Liaison Officer
26th July 2018	Director of the Garda Youth Diversion Office decided that the Applicant was unsuitable for inclusion in the programme in respect of the first alleged assault, the assault causing harm to the lady
22nd August 2018	Applicant charged with the first alleged assault
4th September 2018	Applicant was before the court in respect of the first alleged offence
15th October 2018	Applicant was deemed unsuitable for inclusion in the programme in respect of the second alleged assault causing harm to the security guard
23rd November	Garda O'Reilly intended to charge the applicant in respect of the second alleged assault before the court on this date, however, the applicant did not appear and a warrant was issued for his arrest.
19th December 2018	Applicant charged with the second alleged assault when the applicant was before the court in respect of the first charge
16th January 2019	The delay issue was flagged before the Children's Court
13th February 2019	Applicant served with the Book of Evidence
22nd March 2019	Applicant failed to appear on bail before the Circuit Court and a warrant was issued for his arrest
18th April 2019	Warrant was executed and the applicant was refused bail and remanded in custody
29th April 2019	Applicant sought and obtained leave to bring judicial review proceedings

Submissions on behalf of the applicant

8 It was the applicant's case at the hearing of this application that owing to blameworthy prosecutorial delay on behalf of the respondent, the applicant has now “ aged out”, having reached the age of majority prior to being charged, and has now lost the statutory protections under the Children Act, 2001. In particular he has lost the benefit of a jurisdictional hearing under s.75 of the 2001 Act. The applicant relied on the seminal decision of Donoghue v. DPP [2014] 2 I.R. 762,...