Jason Cerfas v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 07 February 2022
• Neutral Citation: [2022] IEHC 70
• Docket Number: RECORD NO. 2020/874JR
• Court: High Court

Between

Jason Cerfas

Plaintiff

and

The Director of Public Prosecutions

Defendant

[2022] IEHC 70

RECORD NO. 2020/874JR

THE HIGH COURT

JUDGMENT of Ms. Justice Niamh Hyland delivered on 7 February 2022

Introduction

1 By these judicial review proceedings, the applicant seeks to prohibit his trial for robbery, assault and violent disorder from going ahead. His reasoning is that he was 15 years old when the alleged offences were committed but because of prosecutorial delay, the matter did not come before the Court until after his eighteenth birthday, thus depriving him of the benefit of the Children Act 2001 (“the Children Act”). He argues that because of the resulting prejudice, his trial ought to be prohibited.

2 Applying the principles established by the Supreme Court in Donoghue v DPP [2014] IESC 56, I have concluded that, for the reasons outlined below, there has been culpable prosecutorial delay but that the public interest in permitting the trial to go ahead outweighs the disadvantage to the applicant in not having the benefit of the Children Act, particularly where some (though not all) of those benefits are still available to him, albeit now at the discretion of the trial judge.

Factual background

3 The applicant was born on 15 June 2002. He has been charged with 3 offences i.e. robbery, assault causing harm and violent disorder arising from events occurring on 5 November 2017.

4 On that date, as part of an ongoing racist and interracial feud in North County Dublin, two teenagers were lured to Gormanstown Co. Meath by other teenagers on the pretence that they had an empty house where they could spend time together. The two teenagers, who I will refer to as AC and JC, met at the train station in Gormanstown, and began walking towards Stamullen. En route, they were attacked by a large group of teenagers consisting of about 20 people. The two teenagers were viciously assaulted, beaten with weapons, stamped on, stripped of much of their clothing and robbed. They were left in a doorway barely conscious. AC suffered a broken nose, fractured ribs, bruising and swelling all over his head and body. The applicant has been charged with assault and robbery of AC. JC had bruising to his face and body, a broken nose, facial fractures and a bleed on the brain which had to be drained. No prosecutions have been brought in respect of the attack on JC, largely it seems because he was not able to identify his assailants given the nature of the attack perpetrated on him.

5 There was no CCTV footage of the attack, although CCTV footage was obtained of persons of interest at Gormanstown train station. A witness to the altercation called the Gardaí. By the time they arrived at the scene, the crowd had dispersed, and AC and JC were not at the scene. They were subsequently found lying in the doorway of the house of a witness, from where they were taken by ambulance to hospital.

6 Following the incident, there was a lengthy investigation by the Gardaí involving the scrutiny of CCTV footage, analysis of DNA evidence, interrogation of a large amount of social media communications found on the phones of suspects, interviews with the person who had witnessed the assaults and other persons, as well as the arrest, detention and interviewing of nine persons with a tenth suspect providing a voluntary cautioned memo of interview. In all, 28 persons of interest were identified.

7 The evidence in the case demonstrates that on 10 November 2017, a Mr. A was arrested, who identified the applicant. On 23 March 2018 the applicant was arrested and detained by a Detective Garda Leavy. He was interviewed three times on that date. On the third of those interviews, he made important admissions, including that he knew that there was going to be a gang fight on 5 November 2017 before he travelled to Gormanstown, that he went to Gormanstown with a group of other teenagers, that he realised when he saw the two teenagers arriving that it was not a gang fight but nonetheless got involved, that he boxed them both, that he punched AC on the face, that he hit AC when he was on the ground and that he saw him being stripped. He admitted he knew the girls had lured them to the train station. He accepted he was involved in a robbery and beating where two people were left stripped half naked, severely injured and left at the side of a road.

Chronology of steps taken by prosecution

8 Following the arrest and detention of the applicant on 23 March 2018, it is averred by Detective Garda Morris in his replying affidavit of 9 February 2021 that a file was prepared in relation to some of the young people involved and was forwarded to the State Solicitor in July 2018. However, the DPP did not consider same sufficient, and a composite file was requested dealing with all suspects and the incident in its entirety. It is further averred by Garda Morris that the last person of interest was interviewed by a Garda Leavy on 30 August 2018. On 2 September 2018 a referral to the Juvenile Liason Office was forwarded in respect of the applicant. On 30 September 2018, the applicant was deemed unsuitable for admission to the juvenile diversion program, by reason of the seriousness of the offences with which he was being charged, as well as the fact that he already had five cautions under the program.

9 At paragraph 10 of the affidavit of Detective Garda Morris, he avers that in June 2019, as coordinator of the incident room, he sent a request to members of the investigation team to forward all statements of evidence with a view to compiling an investigation file for submission to the DPP. It may be seen that some considerable time elapsed between the last person of interest being interviewed and the compilation of the statements of evidence and I deal with same below.

10 However, before the file was completed, Detective Garda Morris was detailed for duty in the Special Criminal Court in the CCJ from October to December 2019 and he was not able to complete and submit the file until his return in January 2020. The completed file was forwarded to the DPP's office on 28 February 2020. It comprised almost 450 pages and sought directions in relation to a total of 28 young people.

11 On 21 April 2020 the DPP directed three charges be brought against the applicant and a query was sent seeking clarification on 12 May 2020. A reply was received on 26 May 2020 and the applicant was charged on 30 May 2020.

12 The applicant turned 18 on 15 June 2020. He was released on station bail to appear on 19 June 2020 before Drogheda District Court but because of Covid-19, he did not appear and the case was adjourned. The book of evidence was served on 26 August 2020 and an order was made returning the applicant for trial to Trim Circuit Court on 7 September 2020. By that stage he was of course over 18 and the consequences of that from the point of view of the proceedings are discussed below.

History of the proceedings

13 An application for leave for judicial review was brought on 19 November 2020. An Order is sought by way of judicial review prohibiting the prosecution of the applicant as well as various declarations, an order staying the proceedings and damages. The application was grounded upon the affidavit of Peter Connolly, solicitor for the applicant, sworn on 17 November 2020 and the verifying affidavit of the applicant sworn on 18 November 2020. On 24 November 2020 Peter Connolly swore a second affidavit, this time to ground an application to extend time to apply for leave for judicial review pursuant to Order 84, rule 21(4) of the Rules of the Superior Courts. Mr. Connolly averred that he had filed all relevant papers with the Central Office on 19 November 2020 in contemplation of moving the application, within time, on 23 November 2020 but that he had overlooked the requirement to email digital copies of said papers to the Central Office address provided.

14 He averred that he realised this inadvertence as of Friday 20 November 2020 but given that ex parte leave applications were heard remotely, he was not in a position to mention the matter to the sitting judge. On 30 November 2020, Mr. Justice Simons granted leave to seek judicial review and in so doing ordered that the applicant be granted an extension of time. I do not therefore need to deal with the extension application as this has already been determined by Simons J.

15 Garda Dermot Morris then swore his affidavit on 9 February 2021 and the respondent lodged a statement of opposition dated 23 February 2021.

Arguments of the parties

16 The applicant's case justifying his application for a prohibition of his trial is a simple one. It is that, had the prosecution being advanced in a timely manner, the likelihood is that the case would have been heard and determined against him before he reached his eighteenth birthday on 15 June 2020. In such a case, he would have been able to avail of all the protections of the Children Act. These are identified at paragraph 11 of the applicant's legal submissions as follows;

• “a. The right to make submissions on the issue of jurisdiction i.e. to have the case dealt with summarily in the Children Court (s.75).

• b. The requirement to be accompanied to Court by parent or guardian (s.91).

• c. Reporting restrictions and requirement of anonymity (s.93 & s.252).

• d. An in-camera hearing (s.94).

• e. That any sentence should cause as little interference as possible with the child's legitimate activities and pursuits (s.96(2)).

• f. That any sentence should take the least restrictive form (s.96(2)).

• g. That detention be imposed only as a measure of last resort (s.96(2)).

• h. The stipulation that a Court may take into consideration as mitigating factors a child's age and level of maturity in determining penalty (s.96(3)).

• i. The stipulation that when dealing with a child a Court shall due regard to inter alia the...