J.S. v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 24 May 2023
• Neutral Citation: [2023] IEHC 275
• Court: High Court
• Docket Number: [Record No. 2022/116 JR]

Between

J.S.

Applicant

and

Director of Public Prosecutions

Respondent

[2023] IEHC 275

[Record No. 2022/116 JR]

THE HIGH COURT

Prosecution – Assault causing harm – Delay – Applicant seeking an injunction restraining his continued prosecution by the respondent – Whether there was culpable prosecutorial delay

Facts: The applicant applied to the High Court seeking, inter alia, an injunction restraining his continued prosecution by the respondent, the Director of Public Prosecutions, on one charge of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, as amended, 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 service of the book of evidence upon him.

Held by the Court that there was culpable prosecutorial delay in the preparation and prosecution of the case against the applicant. The Court was supported in that finding by the findings made by the President of the Court of Appeal in his judgment in DPP v Furlong [2022] IECA 85, which was a case that was very similar in circumstances to this case. In that case, the applicant was charged with offences contrary to s. 3 of the 1997 Act; arising out of an assault in a shop. As in this case, the gardaí had the benefit of CCTV footage and statements from the injured parties within a number of weeks of the commission of the offence. In that case, where the offence had occurred on 22nd May, 2017, the court held that it was not unrealistic to hold that the investigative phase could have been concluded within a period of approximately 5/6 months. The Court of Appeal held that the trial judge had been correct in finding that there was blameworthy prosecutorial delay in that case. While there was some delay in obtaining the medical reports in relation to the injured party, which did not come to hand until 11th and 25th November, 2019, the High Court noted that the applicant in this case did not attain his majority until 13th September, 2021. Having regard to the fact that at the date of the commission of the alleged offence, he was aged 15 years, 10 months, and given the speed with which the necessary evidence was compiled after the commission of the alleged offence, the Court found it difficult to understand how it came to be that the prosecution of the applicant for the alleged offence did not occur before he reached the age of 18 years; as a result, he “aged out” and lost a number of the protections and advantages that are provided for under the 2001 Act. The Court noted that while in the Furlong case the Court of Appeal did not prohibit the trial of the applicant, notwithstanding that there was considerable culpable prosecutorial delay, it was clear from reading the judgment of the court that one of the factors which weighed heavily in their consideration of the circumstances in that case was the fact that some of the delay was due to the failure of the applicant to attend for an interview with the gardaí, which had been arranged with his mother prior to that time. No explanation had been forthcoming why the applicant did not keep that appointment. In this case, the High Court noted that it was accepted that the applicant did not contribute to any delay that arose in the investigation and prosecution of the case against him; in addition, there was no weapon used in this case. Therefore, the Court held that it was appropriate to distinguish the Furlong decision from this case.

The Court, looking at the entire circumstances in this case, was satisfied that the appropriate order to make was that set out at para. 1 of the applicant's ex parte docket dated 17th February, 2022.

Application granted.

JUDGMENT of Mr. Justice Barr delivered on the 24 ^th day of May, 2023 .

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 one charge of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, as amended, on grounds of delay.

2 . 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 (hereafter “the 2001 Act”), by virtue of the fact that he reached the age of majority prior to service of the book of evidence upon him.

Background.

3 . The prosecution in question is currently pending before the Circuit Criminal Court in Kildare. It arises out of an incident that occurred on 23 ^rd July, 2019 at a Londis shop on Main Street, Maynooth, Co. Kildare. It is alleged that the applicant was with a group of youths, who had entered the shop and began to throw items around. It is alleged that in the process of a staff member attempting to push the youths out of the shop, the applicant assaulted one of the employees working in the shop, by kicking him in the head. That employee suffered injuries as a result of the assault, including the loss of a tooth and extensive bruising to his face.

4 . The applicant was born on 13 ^th September 2003, meaning he was 15 years and 10 months at the time of the alleged offence. He was arrested on 27 ^th July 2019, four days after the alleged incident. He was interviewed upon arrest, and made several admissions in relation to the incident at the Londis shop.

5 . On 22 ^nd April, 2021, he applicant was charged with an offence contrary to s. 3 of the 1997 Act, as amended, when he was aged 17 years and 7 months. On 26 ^th April 2021, solicitors for the applicant wrote to the prosecuting Garda in this case and enquired as to why there had been such significant delay in charging the applicant. No response was forthcoming.

6 . The applicant was present at Naas District Court on 6 ^th May 2021, when evidence of arrest, charge and caution was given by Sgt. Brian Jacob, before Judge Zaidan. Sgt. Jacob indicated that the DPP had consented to the summary disposal of the applicant's case; however, Judge Zaidan outlined that he did not consider the matter to be minor in nature. The judge noted the applicant's right to bring an application pursuant to s. 75 of the 2001 Act.

7 . On that date, when counsel for the applicant had raised the issue of delay in the prosecution of the matter, Sgt. Jacob indicated that there had been delay in obtaining the medical reports concerning the injured party. An order of disclosure was made, which disclosure was to include relevant matters in relation to the delay, about which complaint had been made.

8 . On 20 ^th July, 2021, disclosure was received by the solicitors for the applicant. This disclosure contained witness statements, the custody record, and a memorandum of interview; but no information regarding the delay was forthcoming.

9 . The s. 75 application was heard on 2 ^nd September, 2021, on which date Judge Zaidan refused jurisdiction to hear the case and remanded the applicant to 14 ^th October 2021 for service of the book of evidence.

10 . The applicant reached the age of majority on 13 ^th September, 2021.

11 . The book of evidence was served upon the applicant on 14 ^th October, 2021. He was returned for trial, on bail, to the next sittings of the Circuit Criminal Court in Kildare.

12 . On 4 ^th February, 2022, solicitors for the applicant wrote to the solicitors for the respondent seeking disclosure of CCTV and an explanation for the delay in prosecuting the applicant. Although the CCTV was forthcoming in a reply on 7 ^th February, 2022; no explanation was given as to the delay question.

13 . On the 21 ^st February, 2022, Meenan J. gave the applicant leave to proceed by way of judicial review for the reliefs sought in his ex parte docket dated 17 ^th February, 2022.

Chronology.

14 . It is necessary to set out a chronology of the investigation of the charges against the applicant, in order to assess the delay in the investigation and prosecution of the matter:

13 th September 2003	Applicant was born.
23 rd July 2019	Alleged assault of the injured party in the Londis shop.
24 th July 2019	Gardaí obtain CCTV footage of the alleged assault.
27 th July 2019	Applicant is arrested and interviewed by Gardaí, in which interview he makes admissions.
28 th July 2019	Statement is taken from the injured party by the Gardaí.
10 th September 2019	Medical reports are requested by the Gardaí.
5 th November 2019	Request for medical reports is repeated.
11 th November 2019	Medical report is received by the Gardaí from Naas Emergency Department.
25 th November 2019	Medical report is received from Dublin Dental Hospital.
4 th March 2020	Youth Referral of the applicant approved by Superintendent Wall.
2 nd April 2020	Youth Referral of applicant created by Garda Kelly.
31 st May 2020	‘Skeleton file’ of the applicant forwarded for directions.
6 th August 2020	Applicant is deemed unsuitable for inclusion in the Youth Diversion Programme.
7 th March 2021	File submitted for directions.
14 th and 20 th March 2021	File returned for amendments.
22 nd March 2021	File is re-submitted for directions.
24 th March 2021	Inspector McDonald directs that the applicant be charged with s. 3 assault contrary to the 1997 Act.
22 nd April 2021	Applicant is arrested and charged with assault.
26 th April 2021	Letter is sent to the Gardaí by the applicant's...