Wilde v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 18 September 2020
• Neutral Citation: [2020] IEHC 385
• Docket Number: 2019 No. 120 J.R.
• Court: High Court
• Date: 18 September 2020

BETWEEN

RONNIE WILDE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2020] IEHC 385

Garrett Simons J.

2019 No. 120 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Prosecutorial delay – Balance of justice – Applicant seeking to restrain the further prosecution of criminal charges pending against him on the basis of prosecutorial delay – Whether the balance of justice lay in favour of allowing the prosecution to proceed

Facts: The applicant, Mr Wilde, 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 sixteen 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 principles, and a mandatory probation report. The benefit of these 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 had been culpable or blameworthy prosecutorial delay in the case. The Court found that the delay centred on the progression of the criminal prosecution, i.e. post-investigation, and the failure to charge the applicant until 17 December 2018. The Court held that there were a number of aspects of the case which pointed strongly in favour of allowing the prosecution to proceed. The Court noted that the alleged incident involved an attempt to escape from custody in a courthouse setting, and was said to have involved an assault on three members of An Garda Síochána. The Court held that there is a public interest in ensuring the integrity of court proceedings, and the health and safety of those involved in transporting detainees to and from courthouses. The Court held that it is essential to the rule of law to ensure that discipline and order are maintained at courthouses. The Court found that it would tend to undermine the rule of law if the respondent, the Director of Public Prosecutions, were to be restrained from pursuing prosecutions for offences such as those alleged in this case; this is especially so where there had been no suggestion that the applicant’s ability to defend the proceedings had been prejudiced by the delay. The Court noted that, in contrast to the accused in Donoghue v Director of Public Prosecutions [2014] 2 IR 762, the applicant had not made a full admission. In all the circumstances, the Court was satisfied that these factors outweighed any prejudice accruing to the applicant as a result of the loss of the reporting restrictions under s. 93 of the 2001 Act. The Court held that the balance of justice lay in favour of allowing the prosecution to proceed.

The Court held that the application for judicial review would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Garrett Simons delivered on 18 September 2020

INTRODUCTION

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 sixteen 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 principles, and a mandatory probation report. 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 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 include inter alia (i) the length of delay itself; (ii) the age of the accused at the time the alleged offences occurred; (iii) the loss of statutory safeguards under the Children Act 2001; (iv) the stress and anxiety, if any, caused to the child as a result of the threat of prosecution hanging over them; and (v) any prejudice caused to the conduct of the defence.

FACTUAL BACKGROUND

5 The Applicant has been charged with a number of offences arising out of an incident said to have occurred on 22 November 2016. In brief, the Applicant had appeared before the High Court at Cloverhill courthouse on that date. Having been refused bail, the Applicant is alleged to have attempted to escape from custody. It is further alleged that, during the course of this incident, the Applicant assaulted three members of An Garda Síochána and damaged a glass door panel at the courthouse.

6 Four charges have been preferred as follows: (i) a charge of criminal damage to the door of the courthouse; (ii) two charges of assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997; and (iii) a charge of assault causing harm pursuant to section 3 of the Non-Fatal Offences Against the Person Act 1997. The Director of Public Prosecutions had directed that the offences be dealt with summarily in the District Court, and the District Court has since accepted jurisdiction.

7 The Applicant was born on 30 October 2000, and thus had been 16 years of age at the time of the alleged offences. The Applicant was ultimately charged with the offences on 17 December 2018, that is some two years after the date of the alleged incident. As of that date, the Applicant had already achieved his age of majority.

8 The details of the initial police investigation, and processing of the criminal prosecution have been set out in two affidavits sworn by Garda Sergeant Sinéad Hennigan. An affidavit has also been sworn by a principal prosecutor of the Directing Division of the Office of the Director of Public Prosecutions. This affidavit confirms that a direction to charge was issued on 6 November 2017.

9 The key events in the chronology are as follows.

22 November 2016	Date of alleged incident
18 April 2017	Applicant is interviewed under caution
2 May 2017	Skeleton file sent to Garda Youth Diversion Office
11 May 2017	Applicant deemed unsuitable for diversion programme
16 May 2017	Application for summonses
31 August 2017	File sent to Director of Public Prosecutions
14 September 2017	DPP's Office requests copies of CCTV footage
15 September 2017	Return date for summonses (not served)
27 October 2017	CCTV footage received by DPP's Office
6 November 2017	Direction to charge issued
22 January 2018	Application to reissue summonses
15 June 2018	Return date for summonses (not served)
30 October 2018	Applicant turns eighteen years old
17 December 2018	Applicant charged with offences while attending court on another matter

10 As appears, the Applicant had been interviewed under caution on 18 April 2017. A transcript of that interview has been exhibited in these proceedings. It appears therefrom that it was put to the Applicant that he had kicked a pane of glass in the lobby of the courthouse and had broken it. It was also put to the Applicant that he had struck out and headbutted a member of An Garda Síochána, causing his lip to bleed. Both of these allegations were denied by the Applicant and described as “lies”.

11 The chronology indicates that whereas the police investigation had been carried out promptly, there was a considerable delay in progressing the criminal prosecution thereafter. An Garda Síochána had initially decided to employ the summons procedure. rather than charging the Applicant directly, i.e. the charge sheet procedure. The summons procedure involves an application to the Courts Service for the issuance of a summons. Such summonses are generally...