BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> F v Director of Public Prosecutions (Approved) [2025] IEHC 279 (11 April 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC279.html
Cite as: [2025] IEHC 279

[New search] [Printable PDF version] [Help]

harp graphic.

THE HIGH COURT

[2025] IEHC 279

[Record No. 2023 1199 JR]

BETWEEN

F

APPLICANT

AND

 

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Ms. Justice Marguerite Bolger delivered on 11th Day of April 2025

 

1.    This is the applicant's application for prohibition in relation to proceedings against him currently pending before the Kildare Circuit Criminal Court.  For the reasons set out below, I grant an order of prohibition.

2.    The applicant was charged with a single offence of attempted Money Laundering contrary to s. 7(1)(a)(ii), 7(1)(b) and 7(3) of the Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010. The offence is alleged to have occurred on 6 June 2019, when the applicant was aged 16 years and two months. The applicant asserts that there has been culpable prosecutorial delay in his case in breach of the special duty of expedition owed to a minor, as a result of which he says he has suffered prejudice that outweighs the public interest in prosecuting him. The Director stands over the progress of the prosecution and seeks to explain the delay by reference to the backlogs in the workload of the Cyber Crime Bureau and the complexity of the investigation.

3.    To succeed in his application, the applicant must establish that there has been culpable prosecutorial delay.  The court must then conduct a balancing exercise between the public interest in prosecuting the applicant against the prejudice to him for having lost the opportunity to benefit from the provisions of the Children Act 2001 (hereinafter referred to as 'the 2001 Act').

Background

4.    The following is the agreed timeline of the investigation and proceedings:

13th April 2003

 

Applicant's date of Birth

6th June 2019

Age: 16 years & 2 months

Date of alleged offence

 

7th June 2019

 

Complaint made by Injured Party to Garda National Economic Crime Bureau

22nd October 2019

Age: 16 years & 6 months

Bank of Ireland referral to Garda National Economic Crime Bureau- onwards to Garda Morris

16th January 2020

Age: 16 years & 9 months

s.52 Order and Search Warrant obtained

16th January 2020

 

Search warrants executed & devices seized

11th March 2020

 

s.52 Order complied with by Bank of Ireland

25th May 2020

 

Request made by Cybercrime Bureau

13th April 2021

 

Applicant's 18th Birthday

22nd April 2022

Age: 19 years

Applicant arrested, detained and interviewed- Admissions made.

24th April 2022

 

Garda Morris made his statement

26th April 2022

 

Juvenile Liaison Officer referral

11th May 2022

 

Juvenile Liaison Officer determined Applicant was unsuitable

15th May 2022

 

Statement taken from Garda Luke Gavin

June 2022

 

Cybercrime Bureau request devices

17th August 2022

 

DPP Directed Summary Disposal

26th August 2022

 

Further request for exhibits by Cybercrime

29th August 2022

 

Cybercrime advised analysis is no longer required

9th October 2022

 

Applicant Charged

12th October 2022

 

Applicant appeared in Court. Jurisdiction refused by the District Judge

24th May 2023

Applicant returned for Trial to Kildare Circuit Court

12th June 2023

Applicant's Solicitor wrote to the State Solicitor seeking explanation for delay

13th November 2023

 

Leave to seek Judicial Review granted

19th December 2023

 

Return date for the Notice of Motion

22nd October 2024

 

Hearing date fixed

13th January 2025

 

Hearing date

The law

5.    A person under the age of 18 who is being investigated and prosecuted for a criminal offence is owed a well-established special duty of expedition. In Donoghue v. DPP [2014] 2 I.R. 762, Dunne J., citing the earlier Supreme Court judgment in BF v. DPP [2001] 1 IR 656, held:

"The right to a speedy trial is a fundamental part of our criminal jurisprudence and requires no further elaboration here but the question of a special duty on the State authorities over and above the normal duty of expedition in the case of an offence alleged to have been committed by a child or young person merits some comment. Geoghegan J. in the passage cited above referred to the obvious sensitivities involved in respect of children or young persons coming before the courts. Those sensitivities are reflected in the Children Act 2001 by measures such as those relating to the juvenile diversion programme and those contained, inter alia, in s. 96 of the Act to the effect that a period of detention should only be imposed as a measure of last resort. It is undoubtedly in the interests of children and society as a whole that young offenders should be able to avail of the facilities of the juvenile diversion programme, where appropriate, and, so far as possible, to allow for early intervention with young offenders with a view to maximising the opportunity for rehabilitation. These aims cannot be achieved if there is avoidable delay in the prosecution of young offenders." (at para. 27).

 

As well as establishing culpable prosecutorial delay, Dunne J. said that the court must conduct a balancing exercise to see if there is something in addition to the delay that might outweigh the public interest in prosecuting an offence. The court identified those factors as:

"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." (at para. 52).

6.    Subsequent case law makes it clear that the discharge of this special duty requires:-

"...[A]n awareness on the part of the Gardaí that they were dealing with a suspect who was a juvenile, and linked to that awareness, a desire to deal with matters with the level of expedition required so as to make having the matter dealt with before the suspect attained his majority a realistic prospect." (Furlong v. DPP [2022] IECA 85 at para. 22).

More recently, Kennedy J. in D.K. v. DPP (Unreported, Court of Appeal. Record No.2023/259) stated:

"It is important that the authorities are conscious of, and alert to, the proximity of an accused's majority and to act within that time frame, where reasonably possible. I acknowledge it is not practical or indeed fair to other investigations, that gardaí ­­should put other matters to one side and focus on cases such as these and the same can be said for processing cases within the GYDP."  (at para. 52).

Periods of delay

7.    The timeline sets out various periods of delay ranging from three months to over two years. This court's primary focus is on what happened prior to the applicant's 18th birthday in April 2021, but what happened thereafter may also be relevant in determining the culpability of any delay in the investigation and proceedings.

8.    I consider below the relevant periods of delay.

(i)        7 June 2019 to 22 October 2019; over four months

9.    The injured party made a complaint to An Garda Síochána on 7 June 2019. Garda Morris confirms in his affidavit that the investigation was forwarded to him on 22 October 2019 which was the same day that the Bank of Ireland made a report to the Gardaí that a customer's account had been used in an attempt to secure a transfer previously reported by the injured party. There is no explanation why it took four months for this to happen or why the matter was not referred for investigation sooner after the complaint had been made by the injured party.

(ii)       22 October 2019 to 16 January 2020; nearly three months

10. Garda Morris avers in his affidavit that his first step was to draft an application for an order pursuant to s. 52 of the Criminal Justice (Theft and Fraud) Offences Act 2001 for the production of documents and information to ground an application for a search warrant of the applicant's home.  The order and search warrant were granted by the District Court on 16 January 2020.  The respondent says there is work involved in drafting the papers for the application and that Garda Morris had other commitments at the time. There is no explanation beyond that as to why it took nearly three months for the application to be made.

(iii)      16 January 2020 to 25 May 2020; over four months

11. The s. 52 order and search warrants were granted by the District Court on 16 January 2020.  On the same day, Garda Morris searched the applicant's home and seized a number of devices. The s. 52 order was complied with by the bank on 11 March 2020.  It was not until 25 May 2020 that the devices were sent to the Garda Cyber Bureau for forensic examination, over four months after they were seized. There is no suggestion that the documentation obtained from the bank in March was required for the examination of the devices. Garda Morris' only explanation is that "The analysis of electronic exhibits is a process that is required to be done by trained members of An Garda Síochána" (at para. 17 of Garda Morris' affidavit). Whilst this may explain the decision to send the devices to the Cyber Bureau (though not entirely consistent with the decision to proceed to arrest the applicant on 22 April 2022 without what Garda Morris said was the analysis that was "required" to be done by certain personnel), it does not explain the passage of four months before they were sent there.

(iv)      25 May 2020 to 13 April 2021 (over 10 months) to 22 April 2022 (a further year)

12. Nothing further occurred in the investigation until Garda Morris decided to arrest the applicant on 22 April 2022, apparently without any engagement with the Cyber Bureau either during that nearly two-year period or in the period leading up to the arrest. In the meantime, the applicant had turned 18 on 13 April 2021. There are, therefore, two periods of time to be considered, firstly the time between sending the devices to the Cyber Bureau and the applicant's 18th birthday and, secondly from then until the applicant was arrested. The first period is the more significant. A delay of over ten months occurred between sending the devices to the Cyber Bureau for examination and the applicant's 18th birthday. Inspector Doyle of the Cyber Bureau explained that by setting out the system of prioritisation applied by the Bureau to its heavy work demands. Inspector Doyle averred that an accused's date of birth would not necessarily lead to a priority weighting of the case as there are other factors which also determine how much priority is afforded to a particular investigation. Priority is determined by the risk score assigned to each case by reference to "the future-looking risk posed by the alleged behaviour" (at para. 4). Inspector Doyle said the two years in this case between the case being received and "called" for examination in his experience would not be unusual given the case load at that time and the risk matrix score of 108 that was attached to this case which is in the very low-risk category (at para. 7). He said the vast majority of computer forensic cases relate to child sexual abuse material, an entirely different category to what was being investigated in this case.

13. Even if what Inspector Doyle viewed as a not unusual delay of two years were to occur (as it did), the applicant's age at the time the devices were sent for examination and the prospect of him aging out from the opportunity to avail of the protections he might otherwise have had pursuant to the 2001 Act, did not merit any further consideration by the gardaí or any different method of prioritisation by the Bureau. It does not seem that the Bureau had or was instructed to have any particular interest in, concern with or response to the applicant's age or how near or far away his 18th birthday was.

14. I find it surprising that Inspector Doyle averred that "The accused's date of birth would not necessarily lead to a priority weighting of the case" (at para. 4 of Inspector Doyle's affidavit), given the State's special duty of expedition owed to minors pursuant to Donoghue v. DPP. The allocation of limited resources undoubtedly presents challenges to a service such as the Cyber Bureau.  Nevertheless, for its system of prioritisation to ignore the age of a minor in the investigation of an offence is questionable, given the State's special duty to expedite such investigations. That duty should have featured in this referral to the Cyber Bureau in circumstances where the applicant had a further eleven months of his minority at the time the referral was made. The failure to include the applicant's age and the length of time before he was due to turn 18 in the Bureau's system of prioritisation is not consistent with the special duty on the State that is required in such circumstances. Neither is the fact that no steps were taken by the investigating team during that period of time to establish how much longer the analysis might take or to consider the possibility of proceeding with the investigation without the analysis, including with a view to serving additional evidence on the applicant at a later stage. This is not about prioritising cases involving minors, which was found by Kearns J. in Daly v. DPP [2015] IEHC 405 to be unrealistic.  This case is about the State's failure to observe and honour its special duty to the applicant during his minority to expedite an investigation into his potentially criminal conduct.

15. When Garda Morris arrested the applicant on 22 April 2022 he said he had hoped to have more information in hand but "was conscious the investigation needed to be progressed, particularly in light of his age" (at para. 18). However, as of that date of the applicant's arrest, the applicant had passed both his 18th and his 19th birthday. Thus, whatever the reason for Garda Morris' concern about the applicant's age, it could not have been in discharge of the State's special duty to a minor to conduct an investigation expeditiously, as this applicant has long since ceased to be a minor at the time that Garda Morris apparently had concerns about the need to progress the investigation in the light of the applicant's age. 

16. It is clear that neither the prosecution nor the Cyber Bureau did anything or anything sufficient during the period of the applicant's minority to ensure that the investigation could proceed as expeditiously as circumstances would have allowed. That was a breach of the special duty to ensure an expeditious investigation of a minor and renders culpable the delay that was permitted to occur in this investigation up to the applicant's 18th birthday, combined with the earlier delays that had occurred while he was a minor. 

17. The respondent asserted that the applicant's refusal to provide his phone number or email address on the stated basis that he could not remember them, and his denial that another email address and phone number in his name were in use anymore, created some of the delay caused by the analysis (at para. 2.25 of the respondent's written submissions). I do not accept that could be so. Firstly, the applicant's conduct alleged by the respondent to have caused the delay was well after the two years during his minority from when he was alleged to have committed the offence and his 18th birthday and, secondly, by the time he gave those answers or declined to give them, the delay in the analysis of the devices had long since occurred and Garda Morris, on his own averments, had determined that the analysis was no longer required.  None of the delay was caused by the applicant, who had no role in the prosecution process until he was arrested and interviewed in April 2022 shortly after his 19th birthday.

Prejudice to the applicant

18. The applicant set out the following in his submissions as the opportunities, pursuant to the 2001 Act, that he lost as a result of being tried as an adult rather than as a minor:-

"[49] a. The Applicant was not entitled to bring an application in the District Court under s.75 of the Children Act, 2001.

b. The Applicant is no longer entitled to the benefit of s.93 of the Children Act 2001 as substituted by s.139 of the Criminal Justice Act, 2006 which provides for anonymity in respect of a child defendant.

c. The Applicant is no longer entitled to the benefit of s.96 of the Children Act 2001 (hereafter "the Act of 2001") which provides that a sentence of detention should be imposed only as a measure of last resort.

d. The Applicant is furthermore no longer entitled to the benefit of s.99 of the Act of 2001 which mandates the obtaining of a probation report where a court is of the opinion that the appropriate sanction is detention.

e. The Applicant is no longer entitled to be dealt with under s.144 of the Act of 2001 which permits the deferring of a detention order upon certain conditions.

f. The Applicant is no longer entitled to be dealt with under s.151 of the Act of 2001 which permits the imposition of a detention and supervision order permitting a period of detention be followed by supervision within the community."

19. The law permits some of those lost opportunities to be remedied by the court, albeit at the discretion of the trial judge rather than as of right. Others may be of limited relevance to the applicant, including s. 75, given the decision of the District Court that the charge against this applicant was not appropriate for summary disposal, even though the Director had determined that it was. The main loss of opportunity and that on which the applicant primarily bases his case is the loss of anonymity, the resulting risk of publicity and the potential permanent digital footprint from online reporting and/or commentary on the applicant's trial and any conviction resulting therefrom. The applicant's grounding affidavit focuses almost solely on his academic and occupational activities to date. The risk that publicity from a trial and/or conviction presents to his career and future occupational options has caused him great concern and is the main source of the prejudice on which his counsel focused as arising from the loss of the protection that the 2001 Act would have afforded him, specifically the right to a trial other than in public and the right to reporting restrictions.

20. Had the applicant been tried as a minor, there would have been no risk of his name appearing in the media, including the online media reports and resulting comments on social media that will give the applicant a negative online footprint that may follow him throughout his career and his life. The applicant is a young man starting out on his career and occupational path and he contends the negative impact of publicity on his future job prospects constitutes a significant prejudice to him, which outweighs the public interest in prosecuting him. Whilst the respondent contends that he has not identified the future career about which he is now concerned, I am satisfied, from his account of his previous and current employment and the limited nature of his qualifications, that his occupational opportunities are likely to be in service-type industries where publicity about a charge or a conviction of the offence of money laundering is likely to be a significant disadvantage to him in any future search for promotion or alternative employment, given the negative implications such publicity is likely to have for the perception of the applicant's honesty and reliability with financial matters.

21. The respondent contends that the prejudice the applicant may suffer from adverse publicity is lessened and neutralised by the fact of his subsequent convictions, both before and after he reached his majority, for a number of road traffic and drug possession offences in the District Court. Those summary convictions are of a different magnitude to the within indicatable matter which relates to issues that are likely to be viewed as relevant to the applicant's honesty in financial matters. The pending prosecution before the Circuit Court on a charge of money laundering carries a greater risk of publicity than his summary drug possession and road traffic convictions.  Publicity arising from the impugned indictable prosecution may be published online, including by way of online commentary on an online media report that could remain online permanently and regardless of any expunging of the applicant's criminal record should that occur in the future.  This is likely to have a negative impact on his future occupational prospects and his opportunity to develop whatever career choices he may seek to make in the future.  I include this as part of the balancing exercise this Court must conduct between the public interest in prosecuting the applicant and the prejudice to him from losing the protection that would have been afforded to him under the 2001 Act, an exercise which depends on the facts and circumstances of each individual case.

22. Insofar as the respondent maintains the loss of opportunity to avail of the 2001 Act's protections as remediable, s. 258 of the Act allows a conviction arising from an offence committed by a child to be expunged after a period of three years, subject to certain conditions. I do not consider that that will sufficiently remedy the prejudice to this applicant caused by the loss of anonymity. Firstly, it will not take effect for a period of three years from conviction. The applicant is currently a young man starting out on his life, occupation and career plans. Secondly, the expunging of any conviction from the public record will not remove social media posts, including media reports, that may appear online relating to the applicant's trial and/or any conviction. The digital footprint created by such online reporting and/or commentary could be permanent and its continued existence may be outside of the applicant's control, even though it may continue to adversely affect him in his life.

23. In Cerfas v. DPP [2022] IEHC 70, Hyland J. found the loss of the protection of the 2001 Act to have been remediable for that applicant.  However the loss of anonymity was not identified in that case as one of the matters which could be addressed by a trial judge.  For whatever reason it was not one of the statutory protections emphasised by that applicant in their submissions and was not referred to by the learned judge.

24. In Doe v. DPP [2024] IEHC 112, the court, in effect, compensated for the applicant's loss of anonymity by making an order pursuant to its inherent jurisdiction restricting publication of anything that might identify the accused. The Court recognised that this was an unusual order and emphasised that it was a limited interference with the principle that justice be administered in public, because the trial involved a sex offence on a minor which had reporting restrictions anyway, unless the complainant choose to raise them. The offence alleged here is of a different nature and would not involve any such reporting restrictions and, therefore, to make such an order here would be a greater interference with justice being administered in public than what arose in Doe. In any event, neither the applicant nor the respondent sought such an order here, which is not determinative but is a point which I take into account in deciding that such an order would not be appropriate here.

25. A decision that I have found to be helpful and which is almost on all fours with the facts of this case is D.K. v. DPP, a decision of the Court of Appeal and, therefore, binding on this Court. The offence with which that applicant had been charged is identical to the offence alleged here and arose from events that occurred when the applicant was of a similar age. Kennedy J. found that the loss of anonymity was a "significant prejudice" to the applicant (at para. 60) as against the public interest in prosecuting the offence, which she found "must rank low on the scale of gravity" (at para. 67).  She observed that, "It is important that the authorities are conscious of, and alert to, the proximity of an accused's majority and to act within that time frame, where reasonably possible" (at para. 52). The decision of the High Court granting prohibition was upheld.

26. The extent of the prejudice arising from the loss of anonymity in D.K., the low level severity of the offence and the expectation that the authorities would act within the period of time before the applicant reached 18 are all points that apply equally here. 

27. Further support for having regard to the severity of the offence with which an applicant has been charged can be seen in Doe (where the applicant was charged with a sex assault on a child) and Cerfas, where the applicant admitted to:

"[...] going to the location with the intention of engaging in a fight; knowing that the victims had been lured to the spot by a prearranged plan in the context of an interracial feud; punching the first victim in the face; punching him while he was on the ground; and seeing him being stripped and his possessions removed." (at para. 39).

Similarly, serious alleged behaviour of a type totally different to what is alleged here occurred in Daly v DPP, described by Kearns J. as, "a particularly reprehensible and unprovoked assault" which the applicant had made more difficult to investigate by furnishing a false alibi to the Gardaí.

28. The facts in D.K. differed from those in this case in that the applicant brought the matter to the attention of An Garda Síochána himself.  The respondent sought to distinguish the case on that basis, suggesting that there was a much greater level of cooperation in D.K. than here. I do not accept that as a basis on which to distinguish the case or disapply the decision. It would appear that the within applicant was unaware of any investigation into his conduct until his home was searched in January 2020 and a number of devices were seized. The applicant did make some admissions when he was arrested in April 2022. That does not distinguish his situation from what occurred in D.K. sufficiently or at all.

29. One of the few points of distinction between this case and the facts in D.K. is the period of culpable delay which, in D.K., was six and a half months, a period shorter than the cumulative periods of culpable delay that were permitted to occur here. A further distinction was that the offence alleged in D.K. involved a smaller sum of money.  However, it also alleged to have involved actual movement of money into the applicant's account to launder the proceeds of crime. No monies were ever deposited into this applicant's account and it has never been suggested that the applicant's bank account was used to launder the proceeds of crime.

30. I follow the decision of D.K., both because it is binding on this Court, but also because it illustrates a common-sense approach to balancing the public interest in prosecuting an offence, taking account of the severity of the offence, against the prejudice caused to an applicant taking account of the significant prejudice that publicity in an online age will likely involve.

Conclusion

31. The respondent was under not just a duty, but a "special" duty to progress this investigation expeditiously so as to ensure that whatever opportunity the applicant might reasonably be expected to have had to avail of the statutory protection afforded to a minor by the 2001 Act, would be available to him as a person accused of committing an offence such as this which "must rank low on the scale of gravity" (as per Kennedy J., D.K. v. DPP at para. 67), at a time when he had only recently turned 16 and still had a significant period of his minority to run. The discharge of that special duty required the prosecution to be more proactive in moving the investigation along than they were. Such proactivity might or might not have secured a trial before an accused's 18th birthday. There was no evidence that it would not have secured a trial in time to have allowed the applicant to the benefit of the 2001 Act.  The court must come to its own view having regard to the length of time that was allowed to pass during the applicant's minority while nothing was being done to progress the investigation.

32. There is undoubtedly difficulty with the under-resourcing of the Gardaí Cyber Crime Bureau, but the problem here is that there was nothing to suggest any regard by the respondent to the applicant's age and minority status during the lengthy period of time before he turned 18.  There was no evidence of any consideration being given to progressing the investigation without an analysis of the devices or engaging with an alternative method of analysing the devices without the involvement of the Cyber Crime Bureau (as seems to have happened in D.K.) during that time.  Instead, the respondent waited almost two years after the devices had been sent to the Cyber Crime Bureau for analysis to make a decision to proceed with the investigation without the analysis, at a time when the applicant had long since reached his majority.

33. In considering the prejudice to the applicant, the most significant issue for him is the loss of anonymity to which he would have been entitled had the trial taken place before his 18th birthday.  This results in a real risk of publicity and a potential permanent online digital footprint that is likely to adversely affect his future occupational prospects.  This is a prejudice that cannot be remedied in a way that will adequately neutralise or minimise that risk and therefore outweighs the public interest in prosecuting an offence that "must rank low on the scale of gravity" (as per Kennedy J., D.K. v. DPP at para. 67).

34. The applicant is, therefore, entitled to an order of prohibition.

Indicative view on costs

35. As the applicant has succeeded in his proceedings, my indicative view on costs, in accordance with s. 169 of the Legal Services Regulation Act 2015, is that the applicant is entitled to his costs. I will put the matter in at 10.00am on 29th April to hear such further submissions as the parties may wish to make in relation to final orders, including costs.

 

 

Counsel for the Applicant: Michael Delaney SC, Sarah Connolly BL

Counsel for the Respondent: Kate Egan BL

 

 

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010