T.G. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 10 May 2019
• Neutral Citation: [2019] IEHC 303
• Court: High Court
• Docket Number: 2018 No. 79 J.R.
• Date: 10 May 2019

BETWEEN

T.G.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2019] IEHC 303

Simons J.

2018 No. 79 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Prosecution – Arson – Delay – Applicant seeking to restrain the further prosecution of criminal charges pending against him – Whether there was blameworthy prosecutorial delay

Facts: The applicant applied to the High Court seeking to restrain the further prosecution of criminal charges pending against him on the basis of prosecutorial delay. The alleged offences were said to have occurred at a time when the applicant was seventeen years old and thus a “child” as defined under the Children Act 2001. It was contended that had the Garda investigation been conducted expeditiously, then the applicant would have been entitled to have the charges against him determined in accordance with the 2001 Act. This would have afforded the applicant certain statutory entitlements in respect of inter alia anonymity, sentencing and probation reports. The benefit of those statutory entitlements was not available in circumstances where the applicant reached the age of majority prior to the trial of the offences.

Held by the Court that there was no blameworthy prosecutorial delay in this case. The nature of the alleged offences necessitated a detailed and complicated investigation by An Garda Síochána and the Court was satisfied that the investigation was carried out with reasonable expedition during the twelve-month period between the date of the alleged offences and the applicant reaching the age of majority. The Court thought that the seriousness of the alleged offences (which included a charge of arson), the fact that they related to a disturbance at a children detention centre and the fact that the applicant was seventeen years of age when he was said to have committed the alleged offences, were all factors which tipped the balance in favour of allowing the prosecution to proceed. Accordingly, the Court held that the application for judicial review would be dismissed.

The Court proposed to make an order pro tem restricting the reporting of any matter which would identify the applicant. The Court thought that it was necessary to do this, otherwise any right of appeal against its finding that s. 45 of the Courts (Supplemental Provisions) Act 1961 should not apply would be rendered nugatory. The Court held that there was to be no reference to the applicant’s name, his address or the general area from which he comes. The Court held that reference could be made to the fact that he was detained at Oberstown, and to the events of 29 August 2016. The Court held that this order would lapse twenty-eight days after the perfection of the High Court order in this case unless an appeal or an application for leave to appeal, as the case may be, has been filed with either the Court of Appeal or the Supreme Court. The Court held that, in the event an appeal is filed, then such order is to remain in place until such time, if any, as set aside by the Court of Appeal or the Supreme Court or the appeal is dismissed. The Court held that the parties had liberty to apply to it as necessary.

Application dismissed.

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 May 2019.

SUMMARY

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

2 These judicial review proceedings arise against a legislative backdrop whereby the qualifying criterion for the important 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). It is perhaps surprising that the legislation does not expressly address the position of an alleged offender who has transitioned from being a ‘child’ (as defined) to an adult between the date on which the offences are said to have occurred and the date of the hearing and determination of criminal charges arising from those alleged offences. Such an interregnum will arise in a significant number of cases, even allowing for prompt Garda investigations. For example, if an offence is alleged to have been committed by an individual who is a number of weeks shy of his or her eighteenth birthday, it is unrealistic to expect that the offence would be investigated and the prosecution completed prior to that birthday. It would have been helpful if the legislation indicated what is to happen in such circumstances.

3 At all events, 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; and (ii) the seriousness of the alleged offences.

5 For the reasons set out in detail herein, I have concluded that there was no culpable or blameworthy prosecutorial delay in the present case. The offences alleged against the Applicant arise out of a disturbance at Oberstown Children Detention Campus involving at least eight individuals. The nature of the alleged offences necessitated a detailed and complicated investigation by An Garda Síochána. I am satisfied that this investigation was carried out with reasonable expedition during the twelve-month period between the date of the alleged offences and the Applicant reaching the age of majority.

6 Lest I am incorrect in this finding, I have carried out the requisite balancing exercise de bene esse. There are a number of aspects of the present case which tip the balance in favour of allowing the prosecution to proceed. First, the offences occurred at a time when the Applicant was seventeen years of age and was thus close to the age of majority. As noted in Donoghue, the age of an accused is something to be taken into account. Secondly, the offences alleged are very serious offences. They include a charge of arson under the Criminal Damage Act 1991. The offence of arson under subsection 2(1) carries a maximum penalty of imprisonment for life. Thirdly, there is a particular public interest in the prosecution of these alleged offences as they relate to a disturbance at a children detention centre. It is essential to the rule of law to ensure that discipline and order are maintained at prisons and other places of detention. It would be inimical to this were a prosecution to be prohibited in circumstances where the only countervailing factor is the minimal prejudice to the Applicant. The only actual prejudice suffered by the Applicant is the loss of the benefit of reporting restrictions under section 92 of the Children Act 2001. This reflects a legislative choice on the part of the Oireachtas not to extend reporting restrictions to cases involving an adult charged with offences alleged to have been committed as a minor.

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

8 There was some discussion at the hearing before me as to the steps, if any, which might be taken by the High Court to mitigate the loss of the statutory protections under the Children Act 2001. In particular, it was suggested that the loss of the benefit of the reporting restrictions which apply to proceedings under section 92 of the Children Act 2001 might be mitigated by the High Court making an order pursuant to Section 45 of the Courts (Supplemental Provisions) Act 1961. For the reasons set out at paragraph 59 below, I do not think that the court has jurisdiction to make such an order. I will, however, make a temporary order restricting the publication of material which would identify the Applicant. This order will lapse twenty-eight days after the perfection of the High Court order in this case unless an appeal or an application for leave to appeal, as the case may be, has been filed with either the Court of Appeal or the Supreme Court.

FACTUAL BACKGROUND

9 The Applicant has been charged with four offences arising out of a serious disturbance at Oberstown Children Detention Campus on 29 August 2016. In brief, it is alleged that the Applicant and a number of other child detainees gained unauthorised access to a roof area and caused significant damage by removing roof tiles and by setting a fire. It is also alleged that the Applicant committed an offence under Section 15 of the Criminal Justice (Public Order) Act 1994.

10 A flavour of the alleged offences is provided by the following extract from the witness statement of the Director of Oberstown Children Detention Campus (Pat Bergin) contained in...