The Director of Public Prosections v D.K.

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 30 July 2024
• Neutral Citation: [2024] IECA 230
• Docket Number: Record No: 2023/259

Between/

The Director of Public Prosecutions

Appellant

and

D.K.

Respondent/Applicant

[2024] IECA 230

Kennedy J.

Burns J.

MacGrath J.

Record No: 2023/259

THE COURT OF APPEAL

CIVIL

Prosecution – Money laundering – Delay – Appellant appealing from the order prohibiting the prosecution of the respondent on grounds of delay – Whether the judge fell into error in the calculation of the periods of culpable prosecutorial delay

Facts: The appellant, the Director of Public Prosecutions (the Director), appealed to the Court of Appeal from the order of the High Court prohibiting the prosecution of the respondent on a charge of money laundering contrary to ss. 7(1)(a)(ii), 7(1)(b) and 7(3) of the Criminal Justice (Money Laundering & Terrorist Financing) Act 2010, on grounds of delay. The Director contended that the High Court judge fell into error in the calculation of the periods of culpable prosecutorial delay. While there was some debate on the issue, it was not contended that there was no culpable prosecutorial delay, simply that the delay was not that as calculated by the High Court judge. In addition, the Director argued that the loss of the protections under the Children Act 2001 did not constitute significant prejudice sufficient to outweigh the public interest in prosecuting serious offences.

Held by the Court of Appeal that the special duty owed by the State authorities to move with expedition to ensure a speedy trial of a young person does not in and of itself result in the exceptional measure of prohibiting a trial; more is required to counter balance the important public interest in prosecuting offences. The Court held that where prosecutorial delay has been established, the assessment of balancing factors will be heavily fact dependent, requiring each case to be considered on its own facts, taking into account, inter alia, the criteria referred to in Donoghue v DPP [2014] 2 IR 762. The Court noted that the respondent was 16 years and 2 months old at the date of the commission of the alleged offence, admissions were made immediately and the investigation into the circumstances of the offending was effectively concluded by December 2019. While accepting that, thereafter, periods of delay occurred which might reasonably be excused, the Court concluded that the respondent could and should have been prosecuted within time, that is before reaching 18 years and thus having the benefits and safeguards under the 2001 Act open to him. The Court found that the High Court judge properly identified the prejudicial factors flowing as a consequence of the delay with the potential residual and long-lasting adverse consequences for the respondent. Accordingly, the Court of Appeal found that the High Court judge was correct in his conclusion that there was culpable prosecutorial delay. Although the Court of Appeal found the culpable delay to be of a lesser order, it was satisfied that the judge correctly balanced the competing interests in restraining the further prosecution of the respondent.

The Court dismissed the appeal.

Appeal dismissed.

No Redaction Needed

JUDGMENT OF Ms. Justice Isobel Kennedy delivered on the 30th day of July 2024

1 This is an appeal by the Director of Public Prosecutions from the order of the High Court prohibiting the prosecution of the respondent on a charge of money laundering contrary to ss. 7(1)(a)(ii), 7(1)(b) and 7(3) of the Criminal Justice (Money Laundering & Terrorist Financing) Act, 2010, on grounds of delay.

Chronology

2 The offending is alleged to have occurred on a date between the 22 ^nd April 2019 and the 1 ^st May 2019, when the respondent was 16 years and 2 months old.

3 The respondent held a bank account with AIB Bank, the phone number attached to the account was that of his mother. It is said that in or around the 16 ^th April 2019, the respondent connected on social media with an account by the name of ‘MoneyMake.’ The person behind this account messaged the respondent and sought from him his account details in order to lodge money into the account. It was indicated to the respondent that he would receive 30% of the monies lodged into the account, in exchange for withdrawing the money from post offices. Two weeks later, approximately €6,800 was lodged into the respondent's account.

4 On the 30 ^th April 2019, the respondent's bank account was frozen. On the 1 ^st May 2019, the respondent and his mother attended the Garda Station and informed Garda Curry of unusual activity occurring on the respondent's bank account. The respondent made certain admissions.

5 The respondent attained his majority on the 1 ^st February 2021. On the 6 ^th October 2021, he was charged. He applied by way of judicial review for, inter alia, an injunction restraining his continued prosecution on the single charge on the ground of delay. Leave having been granted, the matter came for hearing before the High Court.

6 The High Court (Barr J) was satisfied that there had been culpable prosecutorial delay and that as a consequence, the respondent had suffered significant prejudice because the matter had not been dealt with while he was still a minor. In conducting the balancing test, the High Court judge was satisfied that the public interest in the prosecution of the offence was outweighed by the prejudice to the respondent. The High Court judge granted the injunction sought. This decision has now been appealed by the Director. The focus of the appeal rests not with the High Court identifying culpable prosecutorial delay, but it is said that the learned judge erred in the calculation of the periods of blameworthy prosecutorial delay, and therefore, the requisite balancing of rights was not properly conducted. Moreover, it is contended that the judge erred in determining that the loss of the protections afforded to minors under the Children Act, 2001 constituted significant prejudice.

7 In order to avoid any confusion where the original applicant was successful, I propose to refer to the appellant as ‘the Director.’

8 To properly scrutinise the issues, it is necessary to examine the sequence of events in some detail. The grounds of opposition filed by the legal team on behalf of the respondent accept that the chronology as outlined in the judgment is correct and so I, in this judgment, operate on that basis.

Chronology – The Period Prior to the Return for Trial

9 I have set out relevant detail regarding the chronology of events above. Following the respondent attending the Garda Station on the 1 ^st May 2019, the gardaí, on the 2 ^nd May 2019, obtained an order pursuant to s. 63 of the Criminal Justice Act, 1994 directing disclosure of the respondent's bank account details. On the 3rd May 2019, the respondent's phone was furnished for technical examination and the device download was completed on the 7 ^th June 2019.

10 On the 30 ^th July 2019, enquires were made of the bank by way of disclosure application and on the 9 ^th September 2019, documentation was received.

11 On the 21 ^st October 2019, Garda Curry sought assistance from a detective familiar with fraud investigations and on the 23 ^rd October 2019, Detective Garda Whelan was assigned to the investigation. On the 6 ^th December 2019, D/G Whelan made further enquiries of AIB who responded with further information on the 23 ^rd December 2019.

12 The High Court judge carefully analysed the conduct of the investigation. He accepted that up to 23 ^rd December 2019 the gardaí acted promptly in inter alia, obtaining the disclosure order and examining the respondent's phone. He also accepted that the request for assistance by Garda Curry was made and responded to, and that the bank furnished the information sought promptly. The judge found:—

“thus, the court is satisfied that in 2019 there was no period of culpable prosecutorial delay.”

13 In his affidavit, Garda Curry averred that from January 2020 to March 2020, he was involved in a new management system in his division and that from mid-March 2020 until July 2020, all investigations were paused due to the onset of the pandemic.

14 By early January 2020, all evidence was gathered, and a trained fraud investigator reviewed the file.

15 The next significant development did not occur until the 15 ^th July 2020 when the respondent was arrested and interviewed. He made further admissions.

16 While the High Court judge found that there was a period of delay from January 2020 until the 15 ^th July 2020; the date of the respondent's arrest, he accepted that the onset of the Covid 19 pandemic provided a reasonable explanation for the period of inactivity from mid-March 2020 until the 15 ^th July 2020. However, he was not satisfied that Garda Curry's explanation for the inactivity between January to mid-March 2020 provided an explanation for the delay during that period.

17 In the result, the learned judge did not accept that the explanation proffered that the roll out of the new management system excused inactivity during the first 3 months of 2020, but he did accept that the onset of the Covid 19 pandemic provided a reasonable explanation for the period of inactivity between mid-March 2020 and the 15 ^th July 2020.

18 The next important development occurred on the 23 ^rd July 2020, when a youth referral file was created. On the 31 ^st July 2020, a skeletal file was requested by the National Juvenile Office (hereafter ‘NJO’). This was furnished on the 20 ^th August 2020.

19 I note that no explanation was offered for the delay in furnishing the skeletal file from the 31 ^st July 2020 to the 20 ^th August 2020. Nor is there any explanation for the lapse in time from the 20 ^th August 2020 to an unknown date in February 2021; a period of some 5 months.

20 On the 1st February 2021, the respondent attained his majority.

21 In February 2021, the NJO requested that recommendations be added to the file, which were submitted on the 4 ...