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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dos Santos v The Director of Public Prosecutions (Approved) [2020] IEHC 252 (26 May 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC252.html
Cite as: [2020] IEHC 252
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APPROVED
THE HIGH COURT
JUDICIAL REVIEW
2019 No. 387 J.R.
BETWEEN
MATTHEW DOS SANTOS
AND
APPLICANT
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 26 May 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
NO REDACTION NEEDED
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2
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
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.
Page 3 ⇓
3
FACTUAL BACKGROUND
5. The Applicant has been charged with two offences arising out of an incident said to have
occurred on 11 June 2017. In brief, it is alleged that the Applicant robbed a named
individual of his wallet and mobile telephone, and that, during the course of the robbery,
the Applicant produced a knife and threatened the alleged victim, saying "I'm gonna stab
you, you're getting it tonight".
6. The two offences charged are as follows. First, an offence of robbery pursuant to
section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. A person is
guilty of the offence of "robbery" if he or she steals, and immediately before or at the
time of doing so, and in order to do so, uses force on any person or puts or seeks to put
any person in fear of being then and there subjected to force. A person guilty of robbery
is liable on conviction on indictment to imprisonment for life.
7. Secondly, an offence pursuant to section 11 of the Firearms and Offensive Weapons Act
1990. This section makes it an offence to produce, in a manner likely unlawfully to
intimidate another person, any article capable of inflicting serious injury, while
committing or appearing to be about to commit an (other) offence.
8. The details of the police investigation have been summarised in an affidavit sworn by
Garda Laura O'Brien. (A further affidavit has been sworn by the relevant official in the
Office of the Director of Public Prosecutions). The key events in the chronology are as
follows.
11 June 2017
27/28 July 2017
5 September 2017
8 September 2017
Date of alleged incident
Garda O'Brien views CCTV footage and identifies the
Applicant as a suspect
Application to arrest the Applicant in circumstances where
he was then detained in Oberstown on other offences
(Section 42 of the Criminal Justice Act 1999)
Another co-accused is arrested and questioned
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21 November 2017
5 December 2017
18 December 2017
May 2018
3 June 2018
30 July 2018
5 August 2018
24 September 2018
29 October 2018
30 October 2018
1 January 2019
31 January 2019
19 February 2019
28 March 2019
9 April 2019
12 April 2019
4
Applicant released from Oberstown
Applicant is arrested, by appointment, on suspicion of
robbery
Applicant's brother is interviewed
File forwarded to Detective Sergeant
File amended and returned to supervising Detective
Sergeant
Superintendent reviews file and directs a youth referral
PULSE referral to Garda Youth Diversion Office
Garda Youth Diversion Office request "skeleton file"
Juvenile Liaison Officer's suitability report
Full investigation file sent to Garda Youth Diversion
Office
File hand delivered to Office of the DPP
Email from Office of the DPP seeking copy of particular
statement
Applicant's solicitor writes to Kevin Street District Office
(Slot for sentencing before the Circuit Court on 11 April
2019)
Office of the DPP issues a direction that Applicant be
charged
Applicant arrested at Oberstown and brought before
District Court. District Court declines jurisdiction pursuant
to section 75 of the Children Act 2001
Applicant turns eighteen years old
9. Garda O'Brien explains that the investigation file had gone missing for a period of time.
"20. I am not able to accurately provide for every movement of this file
from the time I forwarded the file to Detective Sergeant O'Brien on
the 3rd June 2018 until it's physical return to my custody on the
31st December 2018. The dates set out in the paragraphs immediately
above for the work done on the file, after I sent the file to Detective
Sergeant O'Brien on the 3rd of June 2018, are taken from date stamps
placed on the original file as it was forwarded from various parties
and from updates to the PULSE system. I am aware that for a time
the file in this case could not be located. I carried out numerous
enquiries with different offices in an effort to locate this file. This
file and accompanying referrals appeared to have been misplaced by
a member of Garda staff during a transition from Kevin Street to the
Juvenile Liaison Officer and National Juvenile Offices. I made every
effort by means of phone calls, emails and physical searches to locate
the file. During this period of time it is my understanding that the
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5
forwarding Garda member was absent on intermittent sick leave due
to stress related issues and therefore was not in a position to be
contacted regarding this file. On the 23rd of December 2018 the file
was located in Kevin Street and returned to Kilmainham Garda
Station for my attention."
APPLICABLE LEGAL PRINCIPLES
10. The leading judgment on prosecutorial delay in cases involving offences alleged to have
been committed by a child is that of the Supreme Court in Donoghue v. Director of Public
11. The judgment in Donoghue indicates that the first question to be determined by a court
is whether there has been culpable or blameworthy prosecutorial delay. In the event that
there has been such delay, then the court must next carry out a balancing exercise.
12. On the facts of Donoghue, members of the Gardaà had called to the minor applicant's
home where a substance was found which was believed to be heroin. The applicant was
aged 16 years at the time. A weighing scales was also found. The applicant immediately
took responsibility for the items, and he signed an admission to this effect. The applicant
was then arrested, and, during the course of interview, he again took full responsibility
for the items found. Subsequently, the items found at his home were forwarded to the
forensic science laboratory for an analysis, and it was confirmed that the substance was
indeed heroin. A period of one year and four and a half months elapsed between the date
of the applicant's arrest and his eventually being charged with an offence under the
Misuse of Drugs Act 1977.
13. The Supreme Court, per Dunne J., held that, having regard to all the circumstances of the
case and bearing in mind the fact that the accused was a child at the time of the
commission of the alleged offence, there was ample evidence before the High Court to
enable the trial judge to reach the conclusion that this was a case in which there had been
significant culpable prosecutorial delay.
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6
14. As appears from the analysis of the delay at pages 770 and 773 of the reported judgment,
the Supreme Court attached some significance to the fact that the criminal case was a
straightforward one, and that admissions had been made by the accused.
"[25]
When the overall period of delay between March 2010 and August
2011 is being considered, it is necessary to bear in mind the nature of
the case (including its complexity), the need to engage with the
National Juvenile Office, the period of delay and the reasons offered
for that delay. This was a straightforward case on the facts where
admissions had been made by Mr. Donoghue. The reasons put
forward for the delay in this case are unsatisfactory. The delay in
completing the investigation file was not adequately explained. I
have no doubt that the statements of the two Gardai mentioned were
necessary but as it appears that those statements were required in
relation to the period of detention of Mr. Donoghue in Coolock Garda
Station, it should have been a straightforward matter to prepare and
obtain the statements."
15. The Supreme Court went on to hold 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.
"[52]
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
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7
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."
16. 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).
17. The Supreme Court then stated its conclusions as follows.
"[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."
Page 8 ⇓
8
18. The principles in Donoghue have recently been considered in two judgments of the Court
of Appeal, A.B. v. Director of Public Prosecutions, unreported, Court of Appeal,
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. I
will discuss these judgments in context when I come to carry out the "balancing exercise"
required in delay cases.
CULPABLE OR BLAMEWORTHY PROSECUTORIAL DELAY
19. The first question to be addressed by this court is whether the pace of the investigation
between the date of the alleged incident (11 June 2017), and the date upon which the
Applicant reached the age of majority, i.e. his eighteenth birthday (12 April 2019),
involved culpable or blameworthy delay. For the reasons explained by the High Court
determining whether there has been prosecutorial delay in a child's case, it is only
appropriate to have regard to events occurring prior to an alleged offender having
reached the age of majority. As it happens, most if not all of the delay complained of in
the present case occurred prior to the Applicant's eighteenth birthday.
20. The carrying out of any criminal investigation will take time: the resources of An Garda
SÃochána are finite, and it takes manpower to collate and examine CCTV and to arrange
to interview any suspects. While the importance of ensuring a speedy trial in the case of
alleged youth offenders is well established, there is no obligation on the prosecuting
authorities to unrealistically prioritise cases involving minors (see the judgment of the
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9
High Court (Kearns P.) in Daly v. Director of Public Prosecutions
[2015] IEHC 405, [48]).
21. There is a further procedural step which is unique to youth offenders, and the need to
complete this step adds to the lapse of time between the date of an alleged offence and
the date upon which charges are preferred. Specifically, juvenile offenders must be
referred to the Garda Diversion Programme. This is provided for under Section 18 of the
Children Act 2001 as follows.
18. Unless the interests of society otherwise require and subject to this Part,
any child who -”
(a) has committed an offence, or
(b) has behaved anti-socially,
and who accepts responsibility for his or her criminal or anti-social
behaviour shall be considered for admission to a diversion programme
(in this Part referred to as the Programme) having the objective set out
in section 19.
22. Relevantly, one of the criteria under section 18 is that the young offender accepts
responsibility for his or her criminal or anti-social behaviour. The making of a referral
to the Garda Diversion Programme must normally await the completion of the
investigation file. This is because it is only when the full extent of the alleged offence is
known that an informed decision can be taken as to whether or not the young offender
has accepted responsibility. The making and completion of a referral to the Garda
Diversion Programme will take some time, and this has to be taken into account by a
court in assessing whether there has been blameworthy or culpable delay.
23. Similarly, the requirement to submit a file for directions to the Office of the Director of
Public Prosecutions will also take some time, and that Office must be allowed a
reasonable period within which to issue its directions.
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10
24. Even allowing for all of these steps, however, the delay of some twenty-two months
between the date of the alleged offence on 11 June 2017, and the subsequent charging of
the Applicant on 9 April 2019, was inordinate. It is also possible to identify culpable
delay at each of the various stages of the investigation and prosecution.
25. The offences alleged to have been committed by the Applicant, while certainly serious
in nature, did not necessitate a complex or painstaking investigation. The individual said
to have been the victim of the robbery, and his friend, had provided very detailed
statements to An Garda SÃochána. The incident had occurred on a LUAS tram and on
the platform of a LUAS stop. An Garda SÃochána were able to harvest video footage of
the incident from CCTV cameras on the tram and other cameras in the vicinity. The
investigating garda was able to identify the Applicant (and his two co-accused) from this
video footage. This identification took place a matter of weeks after the incident. Yet
charges were not preferred for almost twenty-one months thereafter.
26. It seems that one of the co-accused had been arrested and interviewed early in September
2017, that is, within three months of the date of the incident. A further period of three
months elapsed, however, before the Applicant and the second co-accused (the
Applicant's brother) were interviewed. This delay appears to have stemmed in part from
the fact that the Applicant had been detained in Oberstown Children Detention Campus
("Oberstown") for part of this period. The investigating Garda had made an application
for a warrant pursuant to section 42 of the Criminal Justice Act 1999 but, for reasons
which are not explained, this does not seem to have come to anything. (This statutory
provision allows a child detainee to be arrested and detained in connection with the
investigation of other offences). The delay between September and December 2017 was
unreasonable.
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11
27. There is then a further, largely unexplained, delay between December 2017 and the
making of a reference to the Juvenile Diversion Programme in August 2017. It seems
that even then the paperwork was not in order, and the Juvenile Liaison Officer had to
seek further information from the investigating gardaÃ. A decision that the Applicant was
not suitable for the Programme was ultimately made in November 2018.
28. Thereafter, there was a delay in transmitting the file to the Office of the Director of Public
Prosecutions. Again, it appears that the paperwork submitted was not in order, and the
Office sought further information. The relevant email seeking this information appears
to have been missed by An Garda SÃochána. At all events, the Office was in a position
to issue a direction to charge the Applicant on 28 March 2019.
29. Leading counsel for the Applicant, Mr Seamus Clarke, SC, has drawn particular attention
to the letter of 19 February 2019 from the Applicant's solicitor to the Superintendent of
Kevin Street Garda Station.
"We understand that there are a number of outstanding prosecutions
pending for Mr Dos Santos in various districts at present. We are
most anxious that if prosecutions are to be brought that they be done
so in advance of his 18th birthday on the 12th April 2019.
Mr Dos Santos is due for sentence before Judge Codd in the Circuit
Court on the 11th April 2019 and the issue of outstanding prosecutions
was flagged by counsel acting on behalf of Mr Dos Santos. Judge
Codd said that if other matters were to proceed on indictment she
would be in a position to deal with them on the 11th April 2019
alongside his existing Circuit Court case.
If any prosecution is to proceed against Mr Dos Santos, whether
summarily or on indictment we would ask that they be progressed
without any further delay so that Mr Dos Santos does not lose the
protection of the Children's Act 2001."
30. Counsel submits that it had still been open to the prosecuting authorities in February
2019-”notwithstanding the cumulative delay to that date-”to take steps to ensure that
the Applicant had the benefit of the protections under the Children Act 2001.
Specifically, the availability of a hearing date on 11 April 2019 before the Circuit Court
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12
meant that the charges against the Applicant could have been determined in accordance
with the sentencing principles and reporting restrictions applicable under the Children
Act 2001. (This submission appears to have been made on the tacit assumption that the
Applicant would be pleading guilty to the charges).
31. In the event, the prosecuting authorities did not have the matter listed before the Circuit
Court. Instead, the Applicant was brought before the District Court on 9 April 2019.
This allowed him the benefit of a section 75 hearing, but not of the other protections
under the Children Act 2001. The District Court exercised its discretion to send the
Applicant forward to trial on indictment.
32. In summary, I am satisfied that the period of twenty-two months which elapsed in this
case was excessive. At almost every stage of the process, there was culpable delay on
the part of the prosecuting authorities. Certainly, when taken in aggregate the delay is
inordinate and there is no justification for same. What should have been a
straightforward investigation took far too long. The fact that the investigation file seems
to have gone missing within An Garda SÃochána for a significant period of time is
especially concerning.
33. As correctly observed by counsel for the Applicant, even when the prosecuting
authorities were alerted in February 2019 to a practical solution which would have
allowed the Applicant to be sentenced by the Circuit Court on 11 April 2019, i.e. prior to
his reaching the age of majority, this was not availed of.
BALANCING EXERCISE: PREJUDICE ALLEGED BY APPLICANT
34. In circumstances where I have concluded that there has been culpable or blameworthy
prosecutorial delay, it is next necessary to carry out the balancing exercise as set out by
the Supreme Court in Donoghue.
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13
LOSS OF PROTECTIONS UNDER THE CHILDREN ACT 2001
35. The principal prejudice alleged by the Applicant is the loss of certain procedural
entitlements under the Children Act 2001. Specifically, the Applicant submits that but
for the prosecutorial delay, the charges against him would have been heard and
determined in accordance with the Children Act 2001. In particular, it is suggested that
if the Applicant had chosen to plead guilty, the matter could have been brought before
the Circuit Court in short course and before the Applicant had attained the age of
majority. Specifically, it is said that the two charges the subject-matter of these judicial
review proceedings could have been dealt with by the Circuit Court (Her Honour Judge
Codd) at the hearing scheduled for 11 April 2019.
36. I will address each of the sections relied upon by the Applicant under separate sub-
headings below.
(i) Sentencing Principles
37. The Applicant submits that had the matter been determined before he attained the age of
majority, he would have been entitled to the benefit of Section 96(2) of the Children Act
2001 which indicates that a custodial sentence should be imposed upon a juvenile
offender as a matter of last resort.
38. Section 96 in full reads as follows.
"96. (1) Any court when dealing with children charged with offences shall
have regard to-”
(a) the principle that children have rights and freedom before the law
equal to those enjoyed by adults and, in particular, a right to be
heard and to participate in any proceedings of the court that can
affect them, and
(b) the principle that criminal proceedings shall not be used solely to
provide any assistance or service needed to care for or protect a
child.
(2) Because it is desirable wherever possible-”
Page 14 ⇓
14
(a) to allow the education, training or employment of children to
proceed without interruption,
(b) to preserve and strengthen the relationship between children and
their parents and other family members,
(c) to foster the ability of families to develop their own means of
dealing with offending by their children, and
(d) to allow children reside in their own homes,
any penalty imposed on a child for an offence should cause as little
interference as possible with the child's legitimate activities and
pursuits, should take the form most likely to maintain and promote the
development of the child and should take the least restrictive form that
is appropriate in the circumstances; in particular, a period of detention
should be imposed only as a measure of last resort.
(3) A court may take into consideration as mitigating factors a child's age
and level of maturity in determining the nature of any penalty imposed,
unless the penalty is fixed by law.
(4) The penalty imposed on a child for an offence should be no greater than
that which would be appropriate in the case of an adult who commits
an offence of the same kind and may be less, where so provided for in
this Part.
(5) When dealing with a child charged with an offence, a court shall have
due regard to the child's best interests, the interests of the victim of the
offence and the protection of society."
39. On the facts of the present case, the practical significance of the loss of section 96(2), is
very limited for the following two reasons.
40. First, the fact that the alleged offences had occurred at a time when the Applicant had
been a minor is something which will be taken into account by a sentencing court in any
event, i.e. even in the absence of the direct applicability of section 96(2). This issue has
recently been addressed by the Court of Appeal in A.B. v. Director of Public
Prosecutions, unreported, Court of Appeal, 21 January 2020. Birmingham P. stated as
follows.
"16. I agree with the High Court judge that if the stage of considering
sentence is reached, then the judge in the Circuit Court would be
Page 15 ⇓
15
required to have regard to the age and maturity of the appellant at the
time of the commission of the offence. The judge will be sentencing
him as a person who, aged fifteen and a half years, offended.
Obviously, his age and maturity will be highly relevant to the
assessment of the level of culpability. In these circumstances, I do
not see the fact that s. 96(2) of the Children's Act, which stipulates
that a sentence of detention will be a last resort, and s. 99, which
mandates the preparation of a probation report, will not be applicable,
as having any major practical significance."
41. Secondly, it seems to me that there was no real likelihood of the Applicant-”assuming
for the purposes of argument only that he were to be found guilty of the alleged
offences-”would have received a non-custodial sentence even with the benefit of the
sentencing principles under section 96. The Applicant has already been convicted of a
number of offences and had been detained in Oberstown. The Applicant is currently in
custody in Wheatfield Prison. It seems likely, therefore, that, if convicted, a further
custodial sentence would be imposed in any event, even if the Applicant had had the
benefit of being tried as a child.
42. I rely in this regard on the judgments in Smyth v. Director of Public Prosecutions
Bernotas v. Commissioner of An Garda SÃochána [2019] IEHC 296, [17], all three of
which judgments appear to suggest that the putative loss of the benefit of section 96 may
be of less significance in the context of an accused who already has a criminal record and
who is, therefore, more likely to have received a custodial sentence even if he had the
benefit of section 96.
(ii) Reporting Restrictions
43. The second protection said to have been lost is that of the reporting restrictions imposed
under section 93(1). The subsection in full reads as follows.
"(1) In relation to proceedings before any court concerning a child -”
(a) no report which reveals the name, address or school of any child
concerned in the proceedings or includes any particulars likely to
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16
lead to the identification of any such child shall be published or
included in a broadcast or any other form of communication, and
(b) no still or moving picture of or including any such child or which
is likely to lead to his or her identification shall be so published
or included."
44. Section 93 must be read in conjunction with section 258 (non-disclosure of certain
findings of guilt). Section 258 allows for criminal offences of certain classes which were
committed by a person while under the age of eighteen to be what might be colloquially
described as "expunged" after a period of time. The combined effect of the two sections
is that a person who has committed an offence while a child will be able to have their
conviction expunged subsequently, in circumstances where there will not have been any
reportage of the original conviction. However, the practical benefit of section 258 would
be undermined if the trial of an adult being prosecuted in respect of offences alleged to
have been committed as a "child" were to be conducted without any reporting
restrictions. Counsel on behalf of the Applicant, Mr Clarke, SC, submits that sentencing
hearings are often reported by the media, if not in the print edition of a newspaper, then
in the online version.
45. Certainly, in the case of a trial which attracted publicity, there would be a risk that the
existence of the otherwise expunged criminal convictions would be discoverable by
anyone conducting a search on the internet by reference to the accused person's name.
Thus, for example, if the accused applied for a job, the potential employer might locate
references online to the convictions which have formally been expunged.
46. The loss of the reporting restrictions has been described by the Court of Appeal in
Director of Public Prosecutions v. L.E. [2020] IECA 101 as a "significant disadvantage".
This disadvantage has to be weighed against other considerations, such as, in particular,
the seriousness of the offence alleged.
Page 17 ⇓
17
(iii) Mandatory Probation Report
47. The third alleged prejudice is the loss of a right to a mandatory probation report under
section 99. I do not regard this as a particularly serious detriment in circumstances where
the trial court would, in any event, have a discretion to seek such a report. In this regard,
I adopt the approach taken in R.D. v. Director of Public Prosecutions [2018] IEHC 164
Summary
48. In summary, therefore, I have concluded that the principal prejudice suffered by the
Applicant as a result of the prosecutorial delay is that he has lost the benefit of the
reporting restrictions under section 93 of the Children Act 2001. The other complaints
made do not, to my mind, represent a real prejudice. In particular, I do not think that the
loss of the sentencing principles under section 96 is significant on the facts of the present
case where it seems to me that-”in the event of a conviction-”a custodial sentence would
have been likely even with the benefit of section 96(2). Similarly, I do not think that the
loss of the requirement for a mandatory probation report is significant.
FINDINGS OF THE COURT ON BALANCING EXERCISE
49. In performing the balancing exercise mandated by the Supreme Court in Donoghue, it is
necessary to weigh (i) the prejudice caused to the Applicant by the loss of the statutory
reporting restrictions, against (ii) the public interest in the prosecution of offences. There
are a number of aspects of the present case which point strongly in favour of allowing
the prosecution to proceed, as follows.
50. First and foremost, the offences alleged are very serious offences. The circumstances of
the robbery as set out in the book of evidence involve the Applicant producing a Stanley
knife and threatening the alleged victim, saying "I'm gonna stab you, you're getting it
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tonight". The alleged victim has stated that he was in fear of his safety. The District
Court declined to deal with the alleged offences summarily under section 75 of the
Children Act 2001, and the Applicant has, instead, been sent forward for trial in the
Circuit Court. The offence of robbery under section 14 of the Criminal Justice (Theft
and Fraud Offences) Act 2001 carries a maximum penalty of imprisonment for life.
There is a significant public interest in ensuring that alleged incidents of "knife crime"
are prosecuted.
51. Counsel for the Applicant has cited the judgment of the Court of Appeal in Director of
Public Prosecutions v. Byrne [2018] IECA 120 which suggests that a life sentence is
likely to be reserved for only the very worst and most egregious offence of robbery. In
practice, the effective range of custodial penalties caps out at fifteen years, or thereabouts,
for all but the most exceptional cases. On the facts of Byrne, the robbery, which had
been committed by a juvenile offender, involved the grazing of the victim with a knife
and a threat to kill the victim by the offender as he left the scene. The Court of Appeal
indicated that, allowing for the offender's age, a headline sentence of four and a half
years would be appropriate.
52. Although the victim in the present case did not suffer any physical injury, the
circumstances of the offence as alleged-”which include the threat to stab the victim and
a subsequent attempt by the three accused to re-board the tram which was only prevented
by the tram driver locking the doors against them-”are such as to suggest that a similar
headline sentence would apply in the case of conviction.
53. Secondly, the Applicant's ability to defend the proceedings has not been prejudiced. For
reasons similar to those indicating that the police investigation should not have been
complicated, the issues to be determined at trial will also be straightforward. There are
two witnesses of fact, the victim and his friend. There is also extensive video footage
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from CCTV cameras located within the tram and elsewhere in the vicinity. This has, of
course, been made available to the Applicant. Any defence which he may wish to run
has not been affected by the delay.
54. Thirdly, in contrast to the accused in Donoghue, the Applicant has not made any
admissions. Rather, it is clear from the transcript of the police interview in December
2017 that the Applicant at first denied having any recollection of the incident, and, even
when confronted with video footage, continued to deny that he had produced a knife.
55. Finally, the impact of the delay has to be seen in the context of the Applicant's personal
circumstances during the twenty-two month period from the date of the incident to the
date of charges being preferred. The Applicant had been detained in Oberstown in
respect of other criminal offences for much of that period, and had been sent forward on
indictment to the Circuit Court in respect of other, unrelated charges. This history can,
of course, have no bearing whatsoever on the presumption of innocence which the
Applicant is entitled to and continues to enjoy in respect of the charges arising out of the
alleged incident of 11 June 2017. It is to be noted, however, that the objectives, which
the obligation to pursue criminal prosecutions against alleged juvenile offenders
expeditiously is intended to serve, include (i) the avoidance of stress and anxiety being
caused to a child as a result of a threat of prosecution hanging over them for a prolonged
period of time, and (ii) the early rehabilitation of a child.
56. In this connection, the Supreme Court in Donoghue cited with approval the following
comments of the trial judge in that case. (See [2014] 2 I.R. 762 at page 784).
"Two years in the life of a 16 year old boy is a very significant period
indeed. In a case which is going to be contested and which may end
in acquittal, it is highly undesirable that a young person should have
an allegation hanging over his or her head for such a protracted
period. If the case results in a conviction or if there is a plea of guilty,
then the focus of attention is on the capacity of the court to intervene
effectively and promote the rehabilitation of the young offender. If
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two years or more is to be lost then the court's capacity to intervene
effectively will be greatly reduced."
57. The Supreme Court then stated as follows.
"It is difficult to disagree with the comments made by the trial judge
above. It is appropriate to add that the special duty of expedition on
the part of the State authorities in the case of offences alleged to have
been committed by a child will be of benefit to the child offender but
will also be of benefit to society as a whole if early intervention is
effective in diverting the child away from crime. The potential
benefit to the child offender and to society as a whole in diverting
young people towards a crime free lifestyle will undoubtedly be
diminished by delay."
58. These potential benefits apply with less force to a serial offender, such as the Applicant,
who has already been detained during the relevant period in respect of unrelated offences.
It cannot realistically be said that an early trial of the charges arising out of the incident
on 11 June 2017 would have been likely to advance the cause of the Applicant's
rehabilitation or his diversion away from crime. It is also noteworthy that, unlike for
has been no evidence that the charges have caused the Applicant any especial worry or
anxiety.
59. The Applicant's previous convictions are also relevant in assessing the alleged prejudice
said to have been caused by the loss of the sentencing principles otherwise applicable
under section 96 of the Children Act 2001. See paragraphs 37 to 42 above.
60. In all the circumstances, I am satisfied that the four factors identified above outweigh
any prejudice accruing to the Applicant as a result of the loss of the reporting restrictions
under section 93 of the Children Act 2001. The balance of justice lies in favour of
allowing the prosecution to proceed.
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REPORTING RESTRICTIONS?
61. There has been some debate in the earlier case law as to whether the loss of anonymity
under section 93 of the Children Act 2001 could be mitigated by the High Court making
an order pursuant to section 45 of the Courts (Supplemental Provisions) Act 1961. The
judgment of the High Court (Humphreys J.) in M. McD. v. Director of Public
Prosecutions [2016] IEHC 210 suggests that section 45(1) is in deliberately wide terms,
and is not confined to proceedings relating to persons who are children at the time the
matter comes before the court.
I respectfully expressed a contrary view.
"I am not satisfied that Section 45(1) of the Courts (Supplemental
Provisions) Act 1961 can be interpreted in this way. It is well
established that statutory exceptions to the constitutional imperative
that justice should be administered in public must be strictly
construed, both as to the subject matter and the manner in which the
procedures depart from the standard of a full hearing in public. See
Gilchrist v. Sunday Newspapers Ltd. [2017] IESC 18;
[2017] 2 IR 284. It seems to me that in circumstances where the
Oireachtas has made express provision under Section 92 [recte,
section 93]of the Children Act 2001 for restricting the reporting of
criminal proceedings involving offences alleged to have been
committed by children, but has omitted to extend that protection to
cases where the hearing takes place after the child has become an
adult, weight should be given to this legislative preference. It is not
open to this court to sidestep this legislative preference by calling in
aid the general provisions of Section 45(1) of the Courts
(Supplemental Provisions) Act 1961. The specific circumstances in
which criminal proceedings in respect of offences alleged to have
been committed by minors can be held otherwise than in public is
regulated under the Children Act 2001. There is an obvious tension
between the principle that justice be administered in public, and a
desire to shield child defendants from publicity lest it frustrate their
rehabilitation or undermine their future prospects in life. The
compromise chosen by the Oireachtas is to provide anonymity in
cases where the defendant is still a -˜child-™ as defined at the time of
the criminal proceedings. If the child has reached the age of majority,
then they are confined to the benefit of Section 258 of the Children
Act 2001. Section 258 provides, in effect, that criminal convictions
for offences committed as a child shall be expunged after a period of
three years. This is subject to certain exceptions, e.g. it does not
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apply to an offence which is required to be tried by the Central
Criminal Court, or where the defendant has been dealt with regarding
an offence in that three-year period."
63. The passage above has since been cited with approval by the Court of Appeal in A.B. v.
Director of Public Prosecutions, unreported, Court of Appeal, 21 January 2020.
64. I do not propose, therefore, to make any order seeking to restrict the reporting of any
hearing in respect of the two charges pending against the Applicant arising out of the
incident of 11 June 2017.
CONCLUSIONS
65. For the reasons set out in detail herein, I have concluded that there has been culpable or
blameworthy prosecutorial delay in the present case. There are, however, a number of
factors which tip the balance in favour of allowing the prosecution to proceed. These are
set out at paragraphs 49 to 60 above. Accordingly, the application for judicial review is
dismissed.
66. The attention of the parties is drawn to the practice direction issued on 24 March 2020 in
respect of the delivery of judgments electronically, as follows.
"The parties will be invited to communicate electronically with the
Court on issues arising (if any) out of the judgment such as the precise
form of order which requires to be made or questions concerning
costs. If there are such issues and the parties do not agree in this
regard concise written submissions should be filed electronically with
the Office of the Court within 14 days of delivery subject to any other
direction given in the judgment. Unless the interests of justice require
an oral hearing to resolve such matters then any issues thereby arising
will be dealt with remotely and any ruling which the Court is required
to make will also be published on the website and will include a
synopsis of the relevant submissions made, where appropriate."
67. The parties are requested to correspond with each other on the question of the appropriate
costs order. In default of agreement between the parties on the issue, short written
submissions should be filed in the Central Office within fourteen days of today's date.
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Appearances
Seamus Clarke, SC and Marc Thompson Grolimund for the Applicant instructed by Keenan &
Company
Niall Nolan for the Respondent instructed by the Chief Prosecution Solicitor