K. (Aged Out Child) v Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 01 November 2024
• Neutral Citation: [2025] IEHC 470
• Docket Number: 2024 232 JR

Between

K. (Aged Out Child)

Applicant

and

Director of Public Prosecutions

Respondent

[2025] IEHC 470

2024 232 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Criminal prosecution – Culpable prosecutorial delay – Applicant seeking to restrain a criminal prosecution – Whether there had been culpable prosecutorial delay

Facts: The applicant applied to the High Court to restrain a criminal prosecution arising out of an alleged assault causing harm. As of the date of the alleged offences, the applicant had been a “child” within the meaning of the Children Act 2001. The applicant had still been a “child” as of both the date upon which he had been charged with the offences and the later date upon which he had been sent forward for trial to the Circuit Court. The applicant reached the age of eighteen years prior to the hearing and determination of the criminal prosecution. The applicant contended that there had been culpable prosecutorial delay. It was further contended that had the criminal investigation and prosecution been conducted expeditiously, then the applicant would have been entitled to have the charges against him heard and determined in accordance with the procedures prescribed under the 2001 Act. The principal prejudice asserted by the applicant was the supposed loss of the opportunity of having any detention order, which might have been imposed upon him in respect of the alleged assault, “run in” with existing detention orders which he had been serving at the time of the alleged assault. The applicant suggested that any detention order imposed would have run concurrently with the existing detention orders with the result that he would serve no additional time in custody. The applicant also sought to quash the decision of the District Court to send him forward for trial to the Circuit Court. It was argued that the District Court, in deciding whether to retain jurisdiction over the criminal prosecution pursuant to s. 75 of the 2001 Act, erred in the approach that it took to the alleged prosecutorial delay.

Held by the High Court that there had been no culpable prosecutorial delay. Even if there had been culpable prosecutorial delay, the Court held that the balance of justice lay in favour of allowing the criminal prosecution to proceed. The Court noted that, on one side of the scales, the applicant had failed to establish a “real possibility” that he had been prejudiced by the supposed “loss” of more favourable sentencing principles; it remained open to the applicant to argue that the time served under earlier detention orders should be taken into account by the sentencing court in the event that he was convicted of the alleged offences. The Court noted that, on the other side of the scales, the seriousness of the alleged offences and the public interest in maintaining discipline and control in children detention schools and in ensuring the safety of staff members, came down decisively in favour of allowing the criminal prosecution to proceed. The Court found that separate grounds of challenge in relation to the s. 75 hearing were not well founded.

The Court held that the judicial review proceedings must be dismissed in their entirety.

Proceedings dismissed.

Appearances

Tony McGillicuddy SC and Harriet Burgess for the applicant instructed by Broderick Cahalane Moore Solicitors LLP

Sunniva McDonagh SC and Lily Buckley for the respondent instructed by the Chief Prosecution Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 1 September 2025

INTRODUCTION

1 This judgment is delivered in respect of an application to restrain a criminal prosecution. The criminal prosecution arises out of an alleged assault causing harm. The accused person is the applicant in these judicial review proceedings (“ the Applicant”).

2 As of the date of the alleged offences, the Applicant had been a “ child” within the meaning of the Children Act 2001. The Applicant had still been a “ child” as of both the date upon which he had been charged with the offences and the later date upon which he had been sent forward for trial to the Circuit Court. The Applicant subsequently “ aged out”, i.e. reached the age of eighteen years, prior to the hearing and determination of the criminal prosecution. The criminal prosecution has been stayed pending the determination of these judicial review proceedings.

3 The Applicant contends that there has been culpable prosecutorial delay. It is further contended that had the criminal investigation and prosecution been conducted expeditiously, then the Applicant would have been entitled to have the charges against him heard and determined in accordance with the procedures prescribed under the Children Act 2001. The principal prejudice asserted by the Applicant is the supposed loss of the opportunity of having any detention order, which might have been imposed upon him in respect of the alleged assault, “ run in” with existing detention orders which he had been serving at the time of the alleged assault. Put otherwise, the Applicant suggests that any detention order imposed would have run concurrently with the existing detention orders with the result that he would serve no additional time in custody.

4 The Applicant also seeks to quash the decision of the District Court to send him forward for trial to the Circuit Court. In brief, it is argued that the District Court, in deciding whether to retain jurisdiction over the criminal prosecution pursuant to section 75 of the Children Act 2001, erred in the approach that it took to the alleged prosecutorial delay.

PROCEDURAL HISTORY

5 These judicial review proceedings were instituted on 16 February 2024. The High Court made an order on 27 February 2024 allowing the transcript of the hearing before the District Court to be taken up. Thereafter, leave to apply for judicial review was granted, following an inter partes hearing, on 2 July 2024.

6 As originally pleaded, the proceedings sought to challenge the constitutional validity of certain aspects of the Children Act 2001 in relation to reporting restrictions. This constitutional challenge has been overtaken by events in that the Supreme Court has since confirmed that in circumstances where an accused person is a “ child” as of the date criminal proceedings are commenced, the reporting restrictions under section 93 of the Children Act 2001 continue to apply beyond the conclusion of the criminal proceedings ( Director of Public Prosecutions v. P.B. [2025] IESC 12). The Applicant has withdrawn the constitutional challenge and discontinued the proceedings as against Ireland and the Attorney General.

7 Separately, the non-constitutional grounds of challenge have narrowed following the judgment of the Supreme Court in Doe v. Director of Public Prosecutions [2025] IESC 17.

8 These judicial review proceedings came on for hearing before me on 1 July 2025. At the conclusion of the hearing, the parties were given liberty to file supplemental written legal submissions addressing the following issue: the sentencing principles which would have pertained had the Applicant been convicted and sentenced while still a “ child”. This issue assumed a greater significance at the hearing than had been apparent from the first set of written legal submissions and hence the need for supplemental submissions. The supplemental submissions were duly delivered and counsel made very short oral submissions on 22 July 2025. Judgment was reserved to today's date.

APPLICABLE LEGAL PRINCIPLES

9 The Supreme Court has held that, in the case of a criminal offence alleged to have been committed by a child or young person, there is a special duty on the State authorities, over and above the normal duty of expedition, to ensure a speedy trial. See B.F. v. Director of Public Prosecutions [2001] IESC 18, [2001] 1 IR 656 and Donoghue v. Director of Public Prosecutions [2014] IESC 56, [2014] 2 IR 762.

10 The Supreme Court in Donoghue emphasised that blameworthy prosecutorial delay alone will not suffice to prohibit a trial. Rather, the court must conduct a balancing exercise to establish if there is something additional to the delay itself to outweigh the public interest in the prosecution of serious offences. See paragraph 52 of the reported judgment as follows:

“There is no doubt that once there is a finding that blameworthy prosecutorial delay has occurred, a balancing exercise must be conducted to establish if there is by reason of the delay something additional to the delay itself to outweigh the public interest in the prosecution of serious offences. In the case of a child there may well be adverse consequences caused by a blameworthy prosecutorial delay which flow from the fact that the person facing trial is no longer a child. However, the facts and circumstances of each case will have to be considered carefully. The nature of the case may be such that notwithstanding the fact that a person who was a child at the time of the commission of the alleged offence may face trial as an adult, the public interest in having the matter brought to trial may be such as to require the trial to proceed. Thus, in a case involving a very serious charge, the fact that the person to be tried was a child at the time of the commission of the alleged offence and as a consequence of the delay will be tried as an adult, may not be sufficient to outweigh the public interest in having such a charge proceed to trial. In carrying out the balancing exercise, one could attach little or no weight to the fact that someone would be tried as an adult in respect of an offence alleged to have been committed whilst a child if the alleged offence occurred shortly before their 18th birthday. Therefore, in any given case a balancing exercise has to [be] carried out in which a number of factors will have to be put into the melting pot, including the length of delay itself, the age of...