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[2004] IEHC 380

THE HIGH COURT

JUDICIAL REVIEW

[2003 No. 340 J.R.]

BETWEEN

JASON JACKSON

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

[2003 No. 479 J.R.]

BETWEEN

ANTHONY WALSH

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Quirke delivered the 8^th day of December, 2004.

By Order of the High Court (O'Donovan J.) dated 19^th day of May, 2003, Jason Jackson was given leave to apply by way of judicial review for an order of prohibition preventing the respondent from further proceeding with his prosecution in respect of an offence of violent disorder with other persons contrary to the provisions of s. 15 of the Criminal Justice (Public Order) Act, 1994. The offence was allegedly committed on 6^th March, 2000, at Swords Road, Santry in Dublin.

Jason Jackson was also given leave to seek various other reliefs ancillary to and consequential upon the substantive relief sought.

By order of the High Court (Peart J.) dated the 30^th day of June, 2003, Anthony Walsh was given leave to apply by way of judicial review for an order of prohibition preventing the respondent from proceeding with the prosecution of Anthony Walsh in respect of charges including the commission of an offence on 6^th March, 2003, at Swords Road, Santry, Co. Dublin of violent disorder contrary to the provisions of s. 15 of the Criminal Justice (Public Order) Act, 1994.

Anthony Walsh was also given leave to seek further reliefs ancillary to and consequential upon the substantive relief sought.

The grounds which are relied upon by both Jason Jackson and Anthony Walsh in support of their respective claims are the same that is:-

(a) that culpable delay on the part of the respondent in prosecuting the applicants in respect of the charges preferred against them was so excessive as to be sufficient, by itself, to warrant an order prohibiting the trials of both applicants,

(b) that the delay on the part of the respondent in prosecuting the applicants comprises a violation of the applicants' rights to trials with reasonable expedition in due course of law in accordance with the provisions of Article 38.1 of Bunreacht na hEireann, and

(c) that the capacity of the applicants to defend themselves in respect of the charges preferred against them has been impaired by reason of specific prejudice caused or contributed to by the delay in the prosecution of the applicants in respect of the offences concerned.

FACTUAL BACKGROUND

Jason Jackson

1. Jason Jackson was born on 25^th February, 1985. He was fifteen years old when the offences with which he has been charged are alleged to have occurred on 6^th March, 2000.

2. On 18^th April, 2000, Jason Jackson was arrested in respect of another reported offence and whilst detained at Santry garda station was questioned by Garda Suzanne Byrne in relation to the circumstances which gave rise to the offence with which he has been charged in these proceedings.

3. Jason Byrne made a cautioned and signed statement in relation to those events and was released from custody without charge having been advised that a file in relation to the matters concerned would be sent to the respondent's office.

4. On 26^th October, 2001, Garda Suzanne Byrne swore information before the Dublin Metropolitan District Court for the purpose of obtaining an arrest warrant for Jason Jackson in relation to the charges which are the subject of these proceedings. The arrest warrant was issued on that date.

5. On 22^nd November, 2001, Jason Jackson was arrested by Garda Suzanne Byrne in respect of the offences which are the subject of these proceedings and was charged with the commission of those offences. Thereafter, he was admitted to station bail and attended the Dublin Metropolitan District Children's Court on 20^th December, 2001. Thereafter, on 14^th February, 2002, a bench warrant was issued for his arrest by reason of his late arrival.

6. It was expected that the Book of Evidence would be served upon Jason Jackson on the 14^th February. It was not available on that date. It had not been prepared. On 10^th May and on 21^st May, 2002, Jason Jackson attended in court. The Book of Evidence was not served upon him. When the Book of Evidence was not served on 21^st May, the matter was struck out by the presiding judge in the District Court.

^th

She arrested Jason Jackson on 22^nd November, 2001.

No other explanation was offered by way of evidence to explain the delay on the part of the prosecuting authorities in preparing and serving a Book of Evidence upon Jason Jackson until March of 2003 which was precisely three years after the date of the commission of the alleged offence.

10.

^th

ANTHONY WALSH

1. Anthony Walsh was born on 4^th August, 1983. He was sixteen years of age on 6^th March, 2000. On that date an incident occurred which has given rise to the charges which have been preferred against him.

2. On 26^th October, 2001, a warrant for the arrest of Anthony Walsh was obtained from the Dublin Metropolitan District Court. It provided that he had committed violent disorder with other persons on 6^th March, 2000, at Swords Road, Santry, in the city of Dublin. That warrant was never executed. Anthony Walsh was arrested for the first time in relation to the alleged offences on 6^th March, 2003.

3. On various dates between 17^th January, 2002 and 30^th March, 2002, Mr. Pól O'Murchú who was a solicitor acting on behalf of Anthony Walsh, wrote to various garda stations (including Santry garda station) enquiring as to whether there were any outstanding warrants in existence or in the possession of the gardaí relating to Anthony Walsh. Mr O'Murchú requested that any warrants which were in existence should be executed or re-entered in respect of Anthony Walsh (who was then in custody in respect of other offences with which he had been charged or convicted).

Mr. O'Murchú received a reply from Santry garda station indicating that on 6^th March, 2002, there were two outstanding warrants in existence in relation to Anthony Walsh. No action appears to have been taken to execute those warrants or to take any other steps in relation to them.

4. Between 6^th March, 2000 and 6^th March, 2003, Anthony Walsh spent almost 15 months in custody in respect of various offences. He was in custody between 10^th December, 2001 and 19^th December, 2001, and was in continuous custody between the 8^th January, 2002 and 13^th September, 2002.

5. On 6^th March, 2003, Anthony Walsh was sent forward for trial in respect of the offences which are the subject of these proceedings.

6. The Book of Evidence and additional documents obtained by Anthony Walsh's solicitor indicates that shortly after the 6^th March, 2000, a number of statements were taken from various witnesses in relation to the offences which have given rise to the charges preferred against Anthony Walsh. All of the statements appear to have been taken on or before 19^th April, 2000.

7. In a statement taken from a Ms. Tracy Keating on 19^th April, 2000, it is indicated that Anthony Walsh was one of a number of persons who are alleged to have been present during the commission of an assault upon a particular person. A statement from Mr. Noel Kenna (who is jointly accused with Steven Walsh of the alleged offence) contains a suggestion that Steven Walsh was one of a number of persons who were present during the commission of the assault upon the person referred to earlier herein.

8. Garda Suzanne Byrne averred in evidence that during the month subsequent to the 6^th March, 2000, she called to Anthony Walsh's house. She said that she was informed that he was not available and that he sometimes resided in Athlone with his mother. She said that she was also informed that Anthony Walsh had gone to England and that his mother did not know when he would return. She said that the matter of locating him "rested there" until after October, 2001, when she obtained a warrant for his arrest.

9. Garda Byrne averred further that the pressure of working shift work and dealing with the work loads associated with this prosecution contributed to a delay in forwarding a file to the Chief State Solicitor's Office. She also indicated that this was her first major prosecution file and that she was inexperienced in such matters.

10. She indicated that having received directions from the respondent on 12^th April, 2001, to charge Anthony Walsh with the commission of offences contrary to s. 15 the Act of 1994, she had difficulty obtaining a medical certificate in respect of the injured party and she herself suffered from a medical difficulties in July 2001. She said that she got married on 5^th September of that year. She said this contributed to the delay in applying for an arrest warrant which was ultimately sought and obtained in the District Court on 25^th October, 2001.

11. Garda Byrne stated that having obtained the warrant she called on a number of occasions to the applicant's home but was unable to execute the warrant. She said that she was informed by gardaí in Athlone that the applicant might be in prison in Dublin. She then contacted the prison service at Mountjoy and St. Patrick's Institution and Cloverhill but was unable to locate Anthony Walsh. She said that she had decided to "leave the matter of locating Anthony Walsh until I would be informed that the Book of Evidence was ready for a service against him."

12. She was unaware of the fact that Mr. O'Murchú had written to Santry garda station (where she herself was stationed) seeking details of outstanding warrants in respect of Anthony Walsh.

THE ISSUES

Although there are factual differences between the two cases both applicants rely upon the same grounds in support of their respective claims for relief.

In particular it is contended on their behalf that since both were children or young persons at the time of commission of the offence complained of there was a special duty upon the State authorities to bring them to trial speedily. It is argued that the State's failure to do so was of such a character as to warrant the prohibition of trial, even in the absence of evidence of prejudice.

Prejudice is, however, claimed also.

The respondent argues that there has been no culpable delay on behalf of the respondent and no evidence of serious risk that the applicants have been prejudiced in their capacity to defend themselves in respect of the charges.

Alternatively, Ms. McDonagh on behalf of the respondent contends that even if there has been culpable delay on the part of the respondent and consequent breaches of the rights of the applicants to expeditious trials those rights are not outweighed by the community's right to have serious crime prosecuted.

THE DELAY

It is contended on behalf of both applicants that the prosecuting authorities were guilty of inordinate and inexcusable delay in prosecuting the applicants in respect of the charges.

On the evidence, the reasons which have been advanced on behalf of the respondent seeking to explain the delay in prosecuting the two applicants are wholly inadequate.

Jason Jackson was questioned on 18^th April, 2000, in relation to certain events on 6^th March, 2000. However he was not arrested and charged with any offence until 22^nd November, 2001, which was more than 18 months later.

Most, if not all, of the evidence required to prosecute potential offenders had been gathered within approximately six weeks after the commission of the alleged offence of the 6^th March, 2000.

Inexplicably, however, a Book of Evidence was not prepared and could not be served upon Jason Jackson until 6^th March, 2003, which was almost three years after the date of the alleged offence.

The evidence offered on behalf of the prosecuting authorities seeking to explain the delay in prosecuting Jason Jackson comprises an averment by Garda Suzanne Byrne that she had difficulty in obtaining a medical certificate in relation to an injured party between August, 2000 and January, 2001 and that she suffered from medical difficulties in July, 2001 before her marriage on 5^th September, 2001.

Although Jason Jackson was arrested and charged on 22^nd November, 2001, no adequate explanation has been offered in respect of the failure of the prosecuting authorities to prepare and serve a Book of Evidence until 6^th March, 2003. Staffing shortages in the office of the Chief State Solicitor's Office giving rise to industrial action in late 2001 is an insufficient explanation to justify a delay of almost three years in prosecuting a fifteen year old in respect of a serious criminal offence. Allegedly, endemic staffing shortages in that office is similarly insufficient by way of explanation or justification.

Certainly circumstances may arise which may make it impossible for prosecuting authorities to prosecute an accused person in respect of criminal charges for a periods of up to three years. However, no such circumstances appear to have existed in this case.

Accordingly, I am quite satisfied that there was serious and culpable delay on the part of the State in prosecuting Jason Jackson in respect of the charges preferred against him.

Anthony Walsh was charged in March, 2003, with an offence which was alleged to have occurred on 6^th March, 2000. Throughout the intervening three years he was never made aware that he was suspected of having committed that offence. An investigation had however been undertaken by the prosecuting authorities and the respondent had, in April, 2001, directed that a warrant be obtained for Anthony Walsh's arrest so that he could be charged with the commission of an offence.

As in the case of Jason Jackson, the only evidence adduced on behalf of the respondent seeking to explain a delay of three years between the date of the commission of the alleged offence and the date of arrest and charge was the evidence of Garda Suzanne Byrne.

Evidence indicating that the investigation into the incident of 6^th March, 2000, had been completed by the end of April, 2000 has not been challenged. The attempts

made to interview Anthony Walsh in the immediate aftermath of the incident by Garda Byrne were wholly inadequate. On the evidence, it is difficult to accept that he could not have been contacted without difficulty during that period. A warrant for his arrest was not sought or obtained until October, 2001. Garda Byrne's inexperience and her personal difficulties, are quite inadequate explanations for the absence of activity during that period.

The further delay between October 2001, and March, 2003, in arresting Anthony Walsh, charging him with the offence and serving a Book of Evidence upon him remains unexplained.

It is wholly insufficient for the prosecuting authorities to indicate, somewhat vaguely, that Garda Byrne had difficulties in tracing Anthony Walsh at a time when the latter's solicitor was writing to Santry garda station (where Garda Byrne was stationed) seeking to establish if there were warrants outstanding affecting Anthony Walsh.

For fifteen months during the three year period between the date of the alleged offence and the date of charge Anthony Walsh was in the custody of the State. For substantial periods he was represented by a solicitor who was available to represent his interests and who was anxious to deal with any complaints against him.

No plausible evidence has been adduced which would suggest that Stephen Walsh could not have been contacted without undue difficulty during the period in question.

I am accordingly satisfied that there was inordinate, inexcusable and culpable delay on the part of the prosecuting authorities in charging Anthony Walsh in respect of the charges preferred against him and in bringing him to trial in respect of those charges.

CONCLUSIONS

It is argued on behalf of both Jason Jackson and Anthony Walsh that the delay on the part of the State in prosecuting them was of such a character as to entitle them to an order preventing their trials.

The right of accused persons to a trial with reasonable expedition has been established and confirmed repeatedly by the courts within this jurisdiction.

The principles to be applied when determining whether the trial of an accused person should be prohibited on the grounds of a breach of a right to an expeditious trial are also well settled.

Additional principles have also been established and are settled in relation to the delay in the prosecution of certain types of sexual offences where an accused person is alleged to have exercised dominion over the injured party and where the delay may have been caused or contributed to by the conduct of the person accused.

The offences which are the subject of these proceedings do not come within that category of offence and Ms. McDonagh. B.L. on behalf of the respondent argues that the principles identified by Powell J. in Barker v. Wingo 407 U.S. 514 [1972] should be applied to the determination of the issues in these cases.

She says that the three interests of the accused persons which the right to a speedy trial is intended to protect are the interests:-

(1) to prevent oppressive pre- trial incarceration,

(2) to minimise the anxiety and concern of the accused person and

(3) to limit the possibility that the defence will be impaired.

She says that none of these interests have been damaged insofar as the applicants are concerned and that the applicants have not established the existence of a real risk that they will not receive a fair trial.

On behalf of the applicants Ms. Ring S.C. contends that the applicants come within the category of accused persons identified by Geoghegan J. in P.P. v. Director of Public Prosecutions [2000] 1 IR 403 and B.F. v. Director of Public Prosecutions [2001] 1 IR 656 and in particular the latter case.

She says that the delay in prosecuting the applicants has been so intolerable that the trials should be prohibited on that account alone.

Additionally, and in particular, she contends that since both applicants were children or young persons at the time of the commission of the alleged offences there was a special duty upon the State authorities over and above the normal duty of expedition to ensure that the applicants would receive a speedy trial. She says that the conduct of the State in those cases was so aberrant that it comprised a gross and fragrant beach of that special duty sufficient to require that the trial be prohibited.

She also claims that both applicants have suffered damaging prejudice in their capacity to defend themselves in respect of the charges preferred against them.

Specific prejudice, such as the absence of relevant witnesses or documentary or other evidence has not been proved by way of evidence in respect of either applicant.

Jason Jackson was fifteen years old on the date of the alleged offence in March, 2000. Steven Walsh was sixteen years old on that date. Ms. Ring points to the fact that three years can be a lengthy period in the life of a young person of fifteen or sixteen years. Such a period of time at such a point may be of singular importance in the growth and development of personality and lifestyle.

In April, 2000 Jason Jackson was questioned by Garda Byrne in relation to the circumstances which gave rise to the offence a month earlier. He made a cautioned and signed statement and was released from custody.

Although arrested and charged some eighteen months later he was not served with a Book of Evidence (detailing the evidence upon which the State intended to rely in support of the charges) until a further eighteen months had elapsed. By that time he was eighteen years old.

Anthony Walsh was not made aware until the 6^th March, 2003, that he was facing charges in respect of an alleged offence which had occurred exactly three years earlier. By that time he was nineteen years old.

In the intervening period his solicitor had carried out an exhaustive inquiry seeking to establish if there were any outstanding charges pending alleging the commission of offences by Anthony Walsh. The inquiry was made of a number of garda stations in and around the Dublin area.

The capacity of young persons aged eighteen or nineteen years to recall in detail events which occurred three years earlier has been questioned by Ms. Ring S.C.

It can be argued that persons, of whatever age, who are charged with the commission of violent crime are bound to recall whether or not they were involved in its commission. It should not be overlooked, however, that they may, after the lapse of a substantial period of time, have difficulty in recalling matters of detail and indeed the identity of witnesses who may be in a position to provide valuable corroborative or other evidence in support of the defence. Ms. Ring says that this applies with particular emphasis to children and young persons.

I am satisfied that some degree of prejudice to the capacity of the accused persons in this case to defend themselves must be presumed by reason of the inordinate period of time which the State inexplicably allowed to pass before bringing them to trial.

In B.F. v. Director of Public Prosecutions [2001] 1 IR 656 the Supreme Court (Geoghegan J.) found that there had been culpable delay on the part of the State authorities in prosecuting a fourteen year old in respect of sexual offences alleged to have been committed against two young girls.

Dealing with the question of whether the delay was excessive and inexcusable Geoghegan J. observed at pp. 663 – 664, that:

"It is part of the submission of the appellant that in considering this issue the special circumstance of the age of the alleged offender must be taken into account. While there does not appear to be any authority on this precise point, I think that the argument is well-founded. This was a case where on all the evidence it appears to have been a somewhat marginal decision as to whether a prosecution should have been brought at all. While from the point of view of the parents of the victims, the offences understandably seemed horrific, it may well be that there was no serious criminal intent on the part of the appellant. It is obviously impossible to predict how the evidence would unfold at a trial but even upon conviction it might well be a case where a custodial sentence would not be imposed. A case of this kind should be handled by the prosecuting authorities with the utmost sensitivity and it is only fair to say that some sensitivity was shown in this case. But in one area there was a default. It was of the utmost importance that if it was decided to proceed with charges there should be no delay so that a trial would take place while memories were fresh and while the appellant was reasonably close to the age at which he is alleged to have committed the offences. A trial of an adult in respect of an offence which he committed as a child, and particularly a sexual offence, takes a wholly different character from a trial of a child who has committed such offences while a child. This is true quite independently of the different penal provisions applicable to a child or young person, a point also relied upon by the appellant. There was in my view a special obligation of expedition in this case, but that obligation was not complied within that the extradition proceedings were allowed to take an excessive length of time and this delay appears to be inexplicable."

Ms. McDonagh, on behalf of the respondent, contends that the principle identified in this dicta should be applied only to sexual offences committed by a child. She says that it is applicable only to the facts of the case then being decided (which concerned complex issues involving the sexual identity of adolescents).

She says that cases concerning violent disorder are in a different category and that different principles apply to such cases. She says that the right of the community to bring offenders to trial in respect of such offences has greater weight. I do not share that view.

It is no secret that persons in their late teenage years have particular vulnerabilities. These vulnerabilities can be compounded by difficult or deprived family or social circumstances and by a variety of other causes. The interests of the community will not be served by subjecting such persons to substantial delay in confronting them with complaints of criminal activity made against them.

The interests of the community will surely be better served by efficient action on the part of the State authorities designed to ensure that young persons acquitted of criminal offences may be enabled to resume normal life and those convicted may be dealt with in such a manner as to reduce the risk to the community of further criminal activity.

Whilst the right of the community to have criminal offences prosecuted is a right which must, if appropriate, be vindicated by the courts the State authorities also

have a responsibility to take such steps as may be necessary to vindicate that right.

Evidence adduced on behalf of the State asserted understaffing in the office of the State solicitor. Lack of resources was not suggested as a reason for this. It is, therefore unnecessary to consider lack of State resources as a potential cause of prosecutorial delay. It must be assumed in these cases that the State, although fully resourced, simply did not adequately staff its prosecuting organ and that this caused or contributed to the inordinate delay in prosecuting the accused persons.

In P.C. v. Director of Public Prosecutions [1999] 2 IR 25 Keane J. (as he then was) observed at p. 68 that:

"Manifestly in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a trial 'in due course of law'. The delay may be such, that depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself would be impaired…."

Referring to the foregoing passage the High Court (Geoghegan J.) in PP v. Director of Public Prosecutions [2000] 1 IR 403 stated at p. 409 that:

"It is clear from this passage that Keane J. is impliedly acknowledging that different principles may apply to blameworthy delay on the part of the prosecuting authorities. Counsel for the applicant argues that there was such delay in this case. I think that Counsel for the applicant is clearly correct…".

In B.F. v. Director of Public Prosecutions [2001] 1 IR 656 Geoghegan J. referred to his own judgment in PP v. Director of Public Prosecutions and declared at p. 666, that:

"In that case I held that where there was quite clearly culpable delay on the part of the garda authorities in relation to the prosecution of sexual offences which had occurred a long time previously the trial ought to be prohibited even if prejudice was not proved. It seemed to me that in these cases of sexual offences committed a long number of years previously it was particularly incumbent upon the State authorities not to contribute to further delay. I took the view that that was a circumstance where the delay should lead to a prohibition notwithstanding the absence of prejudice. The decision was not appealed to the Supreme Court. To some extent by analogy, I also take the view that in the case of a criminal offence alleged to have been committed by a child or a young person as in this case, there is a special duty on the State authorities over and above the normal duty of expedition to ensure a speedy trial, having regard to the obvious sensitivities involved."

I cannot see why the principle identified by Geoghegan J. in that passage should be confined to cases involving the commission of sexual offences. I do not believe that it was the intention of the court in that case to so confine that expression of principle.

I take the view that where a criminal offence is alleged to have been committed by a child or a young person there is always a special duty upon the State authorities (over and above its fundamental duty), to ensure a speedy trial of the child or young person in respect of the charges preferred.

I am satisfied that the State authorities have not discharged that duty in respect of either of the applicants in these proceedings.

I am satisfied further that the breach of duty on the part of the prosecuting authorities was sufficiently grave to warrant an order preventing the trials of both applicants even in the absence of prejudice. Although no specific prejudice has been proved in these cases a degree of prejudice may be presumed in respect of each applicant having regard to the age of each applicant at the material times.

It follows from what I have found that the applicants are both entitled to the relief which they seek.

Approved: Quirke J.