Oscar v Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 16 May 2024
• Neutral Citation: [2024] IEHC 279
• Court: High Court
• Docket Number: 2023 1315 JR

Between

Oscar (A Pseudonym)

Applicant

and

Director of Public Prosecutions Ireland and The Attorney General

Respondents

[2024] IEHC 279

2023 1315 JR

THE HIGH COURT

JUDICIAL REVIEW

Appearances

Giollaíosa Ó Lideadha SC and Fiachra Treacy for the applicant instructed by Harringtons LLP

Remy Farrell SC and David Fennelly for the respondents instructed by the Chief State Solicitor

JUDGMENT ofMr. Justice Garrett Simonsdelivered on 16 May 2024

INTRODUCTION

1 This judgment is delivered in respect of an application to restrain a criminal prosecution. The applicant is charged with the defilement of a twelve year-old child by engaging in sexual intercourse with her. The applicant is also charged with an offence of sexual exploitation of a child under the Child Trafficking and Pornography Act 1998. As of the date of the alleged offences, the applicant himself had been aged fifteen years.

2 The legal challenge to the criminal prosecution is advanced on a number of different fronts as follows. First, it is alleged that there has been culpable prosecutorial delay. It is 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. This would have afforded the applicant certain statutory entitlements including, inter alia, a right to anonymity, a mandatory probation report, and favourable sentencing principles. The benefit of these statutory entitlements is not now available in circumstances where the applicant has reached the age of majority prior to the criminal prosecution coming on for trial. The shorthand “ ageing out” will be employed to describe this legal consequence.

3 Secondly, it is alleged that it is unfair of the Director of Public Prosecutions to charge the applicant with the offence of defilement of a child under seventeen years of age in circumstances where, or so it is said, the applicant would have been able to avail of a “ reasonable mistake” defence had he been charged with the distinct offence of defilement of a child under fifteen years of age.

4 Thirdly, the applicant raises a number of constitutional issues. These constitutional issues relate to the mens rea requirement for the offence under section 3 of the Criminal Law (Sexual Offences) Act 2006. In brief, the applicant submits that the legislation must be interpreted in such a way as to allow him the benefit of a particular statutory defence. The applicant submits, in the alternative, that if this contended-for interpretation is not available, then the legislation is invalid. The defence is the “ close in age” defence provided for under sub-section 3(8). This defence is sometimes referred to as the “ Romeo and Juliet” defence. The details of this defence are discussed below, at paragraphs 71 and onwards.

5 All references in this judgment to the Criminal Law (Sexual Offences) Act 2006 are to the Act as amended by the Criminal Law (Sexual Offences) Act 2017.

APPLICABLE LEGAL PRINCIPLES

6 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 I.R. 656 and Donoghue v. Director of Public Prosecutions[2014] IESC 56, [2014] 2 I.R. 762.

7 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 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 the person to be tried at the time of the alleged offence, the seriousness of the charge, the complexity of the case, the nature of any prejudice relied on and any other relevant facts and circumstances. It is not enough to rely on the special duty on the State authorities to ensure a speedy trial of the child to prohibit a trial. An applicant must show something more as a consequence of the delay in order to prohibit the trial.”

8 The Supreme Court held that the trial judge was correct to attach significance to the fact that the accused in Donoghue would not have the benefit of certain of the protections of the Children Act 2001. Three particular aspects of the Children Act 2001 were referenced as follows. First, the reporting restrictions applicable to proceedings before any court concerning a child (section 93). Secondly, the sentencing principle that a period of detention should be imposed on a child only as a measure of last resort (section 96). Thirdly, the mandatory requirement to direct a probation officer's report (section 99).

9 The Supreme Court then stated its conclusions as follows (at paragraph 56):

“The special duty of State authorities owed to a child or young person over and above the normal duty of expedition to ensure a speedy trial is an important factor which must be considered in deciding whether there has been blameworthy prosecutorial delay. That special duty does not of itself and without more result in the prohibition of a trial. As in any case of blameworthy prosecutorial delay, 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. In any given case, the age of the young person before the courts will be of relevance. Someone close to the age of 18 at the time of an alleged offence is not likely to be tried as a child no matter how expeditious the State authorities may be in dealing with the matter. On the facts of this case, had the prosecution of Mr. Donoghue been conducted in a timely manner, he could and should have been prosecuted at a time when the provisions of the Children Act 2001 would have applied to him. The trial judge correctly identified a number of adverse consequences that flowed from the delay. Accordingly, I am satisfied that the trial judge was correct in reaching his conclusion that an injunction should be granted preventing the DPP from further prosecuting the case against Mr. Donoghue.”

10 The principles governing the assessment of prosecutorial delay have been more recently considered in three judgments of the Court of Appeal, A.B. v. Director of Public Prosecutions, unreported, Court of Appeal, 21 January 2020; Director of Public Prosecutions v. L.E.[2020] IECA 101; and Furlong v. Director of Public Prosecutions[2022] IECA 85. These judgments elaborate upon the nature of the prejudice which might be suffered by an accused, and also address whether there are steps which the High Court might take to mitigate the loss of some of the protections provided for under the Children Act 2001. These judgments will be considered, in context, in the discussion which follows.

PARTICULARS OF THE ALLEGED OFFENCES

11 The summary of the particulars of the alleged offences which follows below is predicated upon the material in the book of evidence. It should be emphasised that this summary does not entail the making of any findings of fact by the High Court and that the applicant enjoys a presumption of innocence.

12 Having regard to the fact that there is a criminal prosecution pending, and that the complainant has a statutory entitlement to anonymity, certain specific details have been deliberately excluded from the summary. Moreover, personal details, such as the parties' respective dates of birth, have been omitted to avoid the risk of jigsaw identification.

13 The twelve year old child will be referred to in this judgment as “ the complainant”. This is the standard term employed in sexual assault cases. The use of this term should not be understood as expressing any view—one way or the other—on the applicant's contention that the sexual intercourse had been consensual.

14 The incident giving rise to the alleged offences is said to have occurred on the evening of 10 May 2021. As of this date, the applicant had been fifteen years of age and the...