K.D. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 21 February 2017 |
| Neutral Citation | [2017] IECA 53 |
| Date | 21 February 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 53 Record No. 27/2016 |
[2017] IECA 53
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Sheehan J.
Edwards J.
Neutral Citation Number: [2017] IECA 53
Record No. 27/2016
AND
Prosecutorial delay – Sexual offences – Judicial review – Appellant seeking leave to apply for judicial review – Whether appellant had met the threshold for the grant of leave
Facts: The appellant was charged with a number of sexual offences alleged to have been committed against two children. The matter came on for hearing before the Dublin Circuit Court on the 3rd December, 2015. A number of issues were raised in the Circuit Court. First there was a question as to whether the Circuit Court judge had jurisdiction to direct the discontinuance of the proceedings by reason of delay, in particular alleged blameworthy prosecutorial delay. The judge took the view that she did not have such jurisdiction. Secondly, an issue arose as to whether video recorded interviews with the complainants were admissible under s. 16(1)(b) of the Criminal Evidence Act 1992. Greally J ruled that the operative date for the purpose of s. 16 was the date on which the interviews took place. A third issue was raised by the trial judge which was in relation to the applicability of the Victim’s Directive and in particular Article 24 thereof. The trial judge held that the reference in the statute to a person under fourteen years was a reference to their age at the time that the interview was conducted and accordingly that the video recordings were admissible and in those circumstances, she did not proceed to consider whether the Victims Directive was of any application. Following these rulings the jury was discharged and a new trial date was fixed. Thereafter, on the 21st December, 2015, the appellant applied to the High Court (Humphreys J) seeking leave to apply for judicial review for an order of prohibition and declaratory relief in relation to the issue of prosecutorial delay and in relation to the provisions of the 1992 Act. Humphreys J directed that the respondent, the DPP, and notice party, the Attorney General, should be put on notice and he adjourned the hearing of the leave application. When the matter next came before the court, counsel for the parties that had been put on notice indicated that they did not intend to take part in the leave proceedings, but intimated that in the event that leave was granted it was intended at the substantive hearing to oppose the grant of the leave sought. In those circumstances the leave application, although directed to have been on notice was in fact heard on an ex parte basis on the 13th January, 2016 and Humphreys J delivered his judgment refusing leave on the 15th January. The appellant appealed to the Court of Appeal against that refusal arguing that the core issue was whether she had met the threshold for the grant of leave. She contended that while Humphreys J referred to the arguability test derived from the case of G v DPP [1994] 1 IR 374, in truth he had proceeded to determine the substantive issue as to whether the appellant was entitled to the relief she sought rather than the preliminary issue of whether she was entitled to leave to bring the judicial review proceedings.
Held by the Court that the appellant’s submissions had not engaged in any way with the High Court judge’s ruling on the alternative claim based on the alleged unconstitutionality of s. 16(1)(b) of the 1992 Act. The Court identified no ostensible error in the High Court judge’s approach, and considered that he was correct both in his view that an arguable case to challenge the constitutionality of the section in question had not been demonstrated, and further that it was not in any event an appropriate claim to seek to make by way of judicial review proceedings.
The Court held that the appeal should be dismissed.
Appeal dismissed.
The background to this case is that the appellant is a 22 year old female who has been charged with a number of sexual offences alleged to have been committed against two children aged nine and ten years at the time of the offences. The offences against A are alleged to have been committed, at the earliest on dates between 2010 and 2011, when she was aged between nine and ten years of age. She is now fifteen years of age and the offences against B date back at the earliest to dates in 2010 when she was nine years. She is now fourteen years.
The matter came on for hearing before the Dublin Circuit Court on the 3rd December, 2015, Her Honour Judge Melanie Greally presiding. A number of issues were raised in the Circuit Court. First there was a question as to whether the Circuit Court judge had jurisdiction to direct the discontinuance of the proceedings by reason of delay, in particular alleged blameworthy prosecutorial delay. The judge took the view that she did not have such jurisdiction. Secondly, an issue arose as to whether video recorded interviews with the complainants were admissible under s. 16(1)(b) of the Criminal Evidence Act 1992 (the Act of 1992). The complainants were under fourteen years of age when the recordings were made, but were fourteen years and fifteen years respectively at the time the matter came on for trial. Judge Greally ruled that the operative date for the purpose of s. 16 was the date on which the interviews took place. In the course of the debate, about the video recordings of interviews a third issue was raised, this time by the trial judge which was in relation to the applicability of the Victim's Directive and in particular Article 24 thereof which provides that Member States shall ensure that where the victim of crime is a child, which term is defined as meaning any person below eighteen years of age, that all interviews with the child taken in the course of criminal investigations may be visually recorded and such recorded interviews may be used as evidence in criminal proceedings.
The trial judge held that the reference in the statute to a person under fourteen years was a reference to their age at the time that the interview was conducted and accordingly that the video recordings were admissible and in those circumstances, she did not proceed to consider whether the Victims Directive was of any application.
As it happened following these rulings the jury was discharged for reasons unconnected with the current proceedings and a new trial date was fixed. Thereafter, on the 21st December, 2015, the appellant applied to the High Court (Humphreys J.) seeking leave to apply for judicial review for an order of prohibition and declaratory relief in relation to the issue of prosecutorial delay and in relation to the provisions of the Criminal Act of 1992.
An important nuance in relation to the claim for relief in respect of prosecutorial delay was that it was based upon the appellant's right to a trial with due expedition and in particular, in this instance, upon a contention that as a result of such delay the appellant had suffered stress and anxiety going well beyond what would have been the case had the charges been prosecuted expeditiously. It was not contended that the appellant would be caused any difficulty in defending the case because of the delay. Neither was any case being made of oppressive pre-trial incarceration, as the appellant was on bail pending his trial.
Moreover, it should also be noted that in relation to the claim for relief in respect of the Act of 1992, the claim was primarily advanced on the basis that the Circuit Court judge had interpreted the statute incorrectly and with a declaration being sought in support of the interpretation being contended for by the appellant. However, it also involved a claim in the alternative for prohibition, and a declaration, on the basis that s. 16 thereof was repugnant to the Constitution in so far as it purported to authorise a significant departure from what is characterised as the ‘requirement of orality’ in the criminal process, thereby cutting across the applicant's right to a trial in due course of law under Article 38.1 of the Constitution, as well as his right to equal treatment under the law guaranteed under Article 40.3 of the Constitution.
After the application had been opened, Humphreys J. directed that the respondent, Director of Public Prosecutions and notice party, the Attorney General, should be put on notice and he adjourned the hearing of the leave application. When the matter next came before the court, counsel for the parties that had been put on notice, indicated that they did not intend to take part in the leave proceedings, but intimated that in the event that leave was granted it was intended at the substantive hearing to oppose the grant of the leave sought. In those circumstances the leave application, although directed to have been on notice was in fact heard on an ex parte basis on the 13th January, 2016 and Humphreys J. delivered his judgment refusing leave on the 15th January. It is that refusal that is now the subject of the appeal.
Humphreys J. was of the view that having regard to the recent decision of the Court of Appeal in M.S. v. The Director of Public Prosecutions [2015] IECA that it was clear that Judge Greally was correct in holding that she did not have jurisdiction to stop the prosecution on the grounds of delay alone. He felt that a trial judge could only stop a trial if an irredeemable injustice would be caused to the defendant of such gravity that it would be fundamentally...
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