G. v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 24 January 2014 |
| Neutral Citation | [2014] IEHC 33 |
| Docket Number | Record No. 975 JR/2012 |
| Court | High Court |
| Date | 24 January 2014 |
[2014] IEHC 33
THE HIGH COURT
Judicial review - Criminal law – Sexual offences - Juvenile - Rape and attempted rape - Delay in prosecution - Undue delay - Protections for juvenile defendant - Stress and anxiety - Unfair trial - Expedition - Prejudice to defendant - Sentencing - Anonymity - Public interest - Children Act 2001 - Sex Offenders Act 2001
Facts: In July 2012, the applicant was charged with rape and attempted rape against an eight year old girl. These offences were said to have occurred at a family party of the 5th and 6th July 2008 when the applicant was fifteen years old. The complainant reported the incident to her mother on the 6th July 2008, who immediately informed Gardaí. On the 7th July 2008, the applicant made a voluntary cautioned statement to Gardaí, which contained admissions of sexual assault in relation to both this complainant and another child.
The applicant applied and was granted leave to apply for judicial review to restrain the prosecution from continuing. It was argued that the respondent”s delay in charging the applicant amounted to a breach of his right to be tried with due expedition. It was also said that the delay constituted a breach of the special obligation of the respondent to deal expeditiously with juvenile accused persons, and as such had caused the applicant, through no fault of his own, to lose the benefit of protections granted to such juveniles. Further, it was pointed out that since the applicant gave his voluntary cautioned statement, he had completed treatment programmes to address his sexual behaviour and to prevent any sexual offending in the future.
The respondent admitted that some delay had arisen when the investigating officer was transferred and the case was assigned to someone else, and from "a break-down in communication" between the Juvenile Liaison Offices in the relevant Garda Stations and the National Juvenile Office regarding the forwarding of documentation. Nevertheless, it was argued that there hadn”t been any undue delay. Alternatively, it was said that the applicant had no evidence of undue stress or anxiety so there was no risk of an unfair trial. It was also said that if the applicant was convicted, there would be no prejudice caused to the applicant if he was sentenced as an adult because a trial judge would take into account the fact that the offences were committed when he was a minor.
Held by O”Malley J. that where a child who is over the age of criminal responsibility and under the age of 18 accepts responsibility for criminal behaviour then, unless the interests of society require otherwise, he or she must be considered for admission to the Diversion Programme detailed in Part 4 of the Children Act 2001, which means they will avoid criminal prosecution. It was also pointed out that where a young offender is prosecuted for sexual offences, Section 8 of the Sex Offenders Act 2001 mandates that he/she be treated differently than adult offenders. It was, therefore, clear that protections existed for the benefit of minors who faced prosecution.
It was also held that the prosecution authorities had a special duty to deal expeditiously with cases against children. This was because the personalities of children were in a process of development and it was in the interests of the child and the public to steer a young offender onto a law-abiding path as far as possible. To enforce these protections, expedition in the criminal process was clearly required. It was held that this duty had clearly been breached in this case as a result of the delay of Gardaí in charging the applicant, and that the excuses that had been proffered by the prosecution did not excuse this because the investigation had largely been concluded with a month of the alleged incident. It was also pointed out that there was no evidence before the Court to suggest why there was "a break-down in communication" between the Juvenile Liaison Offices in the relevant Garda Stations and the National Juvenile Office regarding the forwarding of documentation. As such, there was no excuse for not charging the applicant at an earlier stage.
It was further held that the respondent”s contention - that injunctive relief was not available because there was no impairment of the applicant's fair trial rights and no evidence of undue stress or anxiety - was flawed. It was said that injunctive relief could still be available despite that but depended on the circumstances of the case. After a consideration of the factors that were unique to this case, it was said that it was in the public interest to grant the injunctive relief because of the extent of the delay in the case, the fact that the applicant had accepted responsibility from an early stage and completed a programme to address his behaviour, and because the applicant would not have a right to anonymity if prosecuted because he was no longer a child. On the last point, it was elaborated that even if the trial judge could take into account the fact the applicant was a minor when the offences were committed when sentencing, he could not grant the applicant the right to anonymity, a protection he would have been able to avail of if he had have been prosecuted at any earlier stage.
Injunctive relief granted.
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4
F (B) v DPP 2001 1 IR 656 2001/9/2399
MCARDLE v DPP UNREP HEDIGAN 5.7.2012 2012/30/8695 2012 IEHC 286
DONOGHUE v DPP UNREP BIRMINGHAM 29.1.2013 (EX TEMPORE)
CULLEN v DPP UNREP O'MALLEY 17.6.2013 2013 IEHC 269
M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006/37/7964 2006 IESC 22
CHILDREN ACT 2001 PART IV
CHILDREN ACT 2001 S143(1)
O'CONNELL, STATE v JUDGE FAWSITT & DPP 1986 IR 362 1986 ILRM 639
BARKER v WINGO 1972 407 US 514
DPP v BYRNE 1994 2 IR 236
C (P) v DPP 1999 2 IR 25
P (P) v DPP 2000 1 IR 403 1999/22/7059
JACKSON v DPP; WALSH v DPP UNREP QUIRKE 8.12.2004 2004/23/5293 2004 IEHC 380
C (A) (A MINOR) v DPP 2008 3 IR 398 2008/6/1006 2008 IEHC 39
H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55
MCARDLE v DPP UNREP HEDIGAN 5.7.2012 2012/30/8695 2012 IEHC 286
DONOGHUE v DPP UNREP BIRMINGHAM 29.1.2013 (EX TEMPORE)
M (P) v DISTRICT JUDGE MALONE & DPP 2002 2 IR 560 2002/16/3761
CHILDREN ACT 1908
DPP v G (D) UNREP CCA 27.5.2005 2005/19/3974 2005 IECCA 75
1.The applicant in this case was born on the 24th August, 1992. He seeks to restrain the continuation of a prosecution against him relating to two charges of serious sexual offences against a very young girl. The offences are alleged to have been committed in July 2008, shortly before the applicant's sixteenth birthday. He was not charged until four weeks before his twentieth birthday, in July 2012. It is pleaded, although not seriously argued, that the delay in charging him has prejudiced him in his defence. The main issue in the case is the claim that the delay has amounted to a breach of his right to be tried with due expedition. It is further argued that the delay constitutes a breach of the special obligation of the respondent to deal expeditiously with juvenile accused persons and has caused the applicant to lose the benefit of protections granted to such juveniles.
The respondent denies that there has been any blameworthy delay. It is argued that there is no risk of an unfair trial, and that such a risk is the only ground upon which relief could be granted. It is further asserted that any prejudice to the applicant in relation to the applicable sentencing regime, by reason of the lapse of time, can be taken into account by a sentencing judge.
The charges arise out of an incident that occurred on the evening of the 5th or the early hours of the 6th of July, 2008, at a party to celebrate a family event. The applicant was the son of a family friend and was well known to the complainant. She was eight years old at the time and the applicant was, as already noted, approaching his sixteenth birthday. It is alleged that the applicant took the complainant into a bathroom, locked the door and told her to take her panties off. He then raped her vaginally and either attempted to or did penetrate her anally. The complainant appears to have told her mother on the evening of the 6th July and a complaint was immediately made to the Gardaí. An investigation commenced, led by Sergeant Patrick McGirl.
On the following day, the 7th July 2008, the complainant was taken to Crumlin Children's Hospital. Also on that day, the applicant's home was searched and he went to a Garda Station with his mother, where he made a voluntary cautioned statement containing admissions in relation to both this complainant and another child. This second child is referred to as ACM.
The following chronology is taken from the affidavit of Sergeant Leona Tolan.
th July 2008: A statement was taken from the complainant by means of a question and answer session.
th July 2008: A complaint was taken from the second complainant, ACM, by means of a memo of questions and answers.
nd July 2008: A report from Sergeant McGirl was sent to the National Juvenile Liaison Office. The report was also forwarded to the applicant's local Garda station.
th August 2008: A blood sample was provided voluntarily by the applicant in the company of his mother.
th August 2008: Samples from the complainant and the applicant were received by the Forensic Science Laboratory.
th August 2008: The presence of semen in the panties of the complainant was reported.
th August 2008:...
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