L.E. v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 28 June 2019
• Neutral Citation: [2019] IEHC 471
• Docket Number: 2017 No. 660 J.R.
• Court: High Court
• Date: 28 June 2019

BETWEEN

L.E.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2019] IEHC 471

Simons J.

2017 No. 660 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Criminal prosecution – Judicial review – Prosecutorial delay – Applicant seeking to restrain the further prosecution of criminal charges pending against her on the basis of prosecutorial delay – Whether there was culpable or blameworthy prosecutorial delay

Facts: The applicant applied to the High Court seeking to restrain the further prosecution of criminal charges pending against her on the basis of prosecutorial delay. The alleged offences were said to have occurred at a time when the applicant was fifteen years old and thus a “child” as defined under the Children Act 2001. It was contended that had the criminal investigation been conducted expeditiously, then the applicant would have been tried prior to her eighteenth birthday and the charges against her would have been determined in accordance with the 2001 Act; this would have afforded the applicant certain statutory safeguards in respect of inter alia anonymity and the benefit of those statutory safeguards was not available in circumstances where the applicant had reached the age of majority prior to the trial of the offences. The applicant asserted that she would be prejudiced by the loss of the benefit of reporting restrictions under s. 92 of the 2001 Act. It was also contended that the applicant had been suffering from poor mental health at the time of the alleged offences. It was pleaded that this had resulted in the applicant experiencing stress and anxiety above the norm for an accused person awaiting trial for a criminal offence.

Held by the Court that, whereas there were pockets of delay in the police investigation, the effect of same was offset by the fact that an expedited trial date had been allocated; the time period between the date upon which charges were preferred and the scheduled trial date before the Circuit Criminal Court was much shorter than usual. The Court held that, taken in the round, there was no culpable or blameworthy prosecutorial delay. The Court also carried out de bene esse the balancing exercise required under Donoghue v Director of Public Prosecutions [2014] 2 IR 762. The Court found that the principal factor in favour of allowing the prosecution to proceed was that the offences alleged against the applicant were very serious offences; in particular, the offence alleged under the Non-Fatal Offences against the Person Act 1997 carried a potential sentence of imprisonment for a term of 10 years. The Court held that there was an obvious public interest in having prosecutions for such serious offences heard and determined. The Court held that the prejudice asserted by the applicant was not sufficiently serious to tip the balance in favour of an order of prohibition. The Court was satisfied, therefore, that the balance lay in favour of allowing the prosecution to proceed. The Court held that whereas the prospect of facing a criminal prosecution will inevitably impose stress and anxiety upon an accused person, this cannot, of itself, be a reason to prohibit a criminal trial. The medical condition of an applicant would have to be wholly exceptional to justify an order of prohibition and the Court found that this threshold had not been met on the facts of the case.

The Court proposed making an order dismissing the judicial review proceedings in their entirety.

Proceedings dismissed.

JUDGMENT of Mr Justice Garrett Simons delivered on 28 June 2019.

SUMMARY

1 The Applicant herein seeks to restrain the further prosecution of criminal charges pending against her on the basis of prosecutorial delay. The alleged offences are said to have occurred at a time when the Applicant was fifteen years old and thus a ‘child’ as defined under the Children Act 2001. It is contended that had the criminal investigation been conducted expeditiously, then the Applicant would have been tried prior to her eighteenth birthday. The charges against her would have been determined in accordance with the Children Act 2001. This would have afforded the Applicant certain statutory safeguards in respect of inter alia anonymity. The benefit of these statutory safeguards is not now available in circumstances where the Applicant has reached the age of majority prior to the trial of the offences.

2 The qualifying criterion for the procedural protections provided for under the Children Act 2001 is the age of the accused as of the date of the trial of the offences (as opposed to his or her age as of the date when the alleged offences are said to have occurred). Thus, an alleged offender who has transitioned from being a ‘child’ (as defined) to an adult between (i) the date on which the offences are said to have occurred, and (ii) the date of the hearing and determination of criminal charges arising from those alleged offences, cannot avail of most of the procedural protections under the Act. (The principal exception is in respect of the right to have the record of a criminal conviction expunged under Section 258 of the Children Act 2001. This is discussed further at paragraph 80 below).

3 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] 1 I.R. 656 and Donoghue v. Director of Public Prosecutions [2014] 2 I.R. 762.

4 The case law indicates that the existence of blameworthy prosecutorial delay alone will not automatically result in the prohibition of a criminal trial. Rather, something more has to be put in the balance to outweigh the public interest in the prosecution of offences. What that may be will depend upon the facts and circumstances of any given case. Factors to be considered can include (i) the age of the accused at the time the alleged offences occurred; (ii) the seriousness of the alleged offences; (iii) the length of the delay; and (iv) whether the accused has made any admissions.

5 For the reasons set out in detail in this judgment, I have concluded that, whereas there were pockets of delay in the police investigation in this case, the effect of same was offset by the fact that an expedited trial date had been allocated. The time period between (i) the date upon which charges were preferred, and (ii) the scheduled trial date before the Circuit Criminal Court was much shorter than usual. Taken in the round, therefore, there was no culpable or blameworthy prosecutorial delay. The Applicant has been charged with very serious offences and—but for these judicial review proceedings—would have had these determined by a jury of her peers at a trial fixed for a date just over two years after the date of the alleged offences.

6 Lest I am incorrect in these findings, I have also carried out de bene esse the balancing exercise required under Donoghue v. Director of Public Prosecutions [2014] 2 I.R. 762. The principal factor in favour of allowing the prosecution to proceed is that the offences alleged against the Applicant are very serious offences. In particular, the offence alleged under the Non-Fatal Offences against the Person Act 1997 carries a potential sentence of imprisonment for a term of 10 years. There is an obvious public interest in having prosecutions for such serious offences heard and determined.

7 On the other side of the scales, the Applicant asserts that she will be prejudiced by the loss of the benefit of reporting restrictions under Section 92 of the Children Act 2001. This type of prejudice appears to be one expressly contemplated by the Oireachtas insofar as it has not extended the statutory safeguards to persons who have transitioned from being a ‘child’ (as defined) to an adult. This prejudice is not sufficiently serious to tip the balance in favour of an order of prohibition. Different considerations might apply if the case had involved allegations of sexual abuse. In such circumstances, the loss of anonymity would have a far greater prejudicial effect as offences of that type attract particular public opprobrium. See, by analogy, the judgment of the High Court (O'Malley J) in G. v. Director of Public Prosecutions [2014] IEHC 33, [108].

8 I am satisfied, therefore, that the balance lies in favour of allowing the prosecution to proceed.

9 It is also contended that the Applicant had been suffering from poor mental health at the time of the alleged offences. It is pleaded that this has resulted in the Applicant experiencing stress and anxiety above the norm for an accused person awaiting trial for a criminal offence.

10 The medical reports confirm that—much to the credit of the Applicant and her mother—the Applicant has made significant progress since the time when she was first referred to the Child and Adolescent Mental Health Service (‘ CAMHS’) in September 2015. Whereas the prospect of facing a criminal prosecution will inevitably impose stress and anxiety upon an accused person, this cannot, of itself, be a reason to prohibit a criminal trial. The medical condition of an applicant would have to be wholly exceptional to justify an order of prohibition. This threshold has not been met on the facts of the present case.

THE ALLEGED OFFENCES

11 The charges against the Applicant arise out of an alleged incident said to have occurred on the evening of 19 September 2015 whereby a young male was assaulted and stabbed. I will refer to this individual as ‘the complainant’. It is alleged that the Applicant and the complainant had had an altercation earlier that evening when the complainant had intervened in a dispute between the Applicant and another young female. The Applicant is alleged to have shouted at the complainant: ‘ I'm going to get you fucking sliced up’.

12 A short...