Supreme Court of Ireland Decisions

1. This is an appeal from an order of the High Court (Roderick Murphy J.) refusing judicial review in the form of an order of prohibition or an injunction restraining the respondent from proceeding with the prosecution of sex offences against the appellant, who was a child at the time of the alleged crimes. I will be referring to the grounds for seeking judicial review in more detail but the main ground was alleged excessive delay on the part of the State authorities.

2. The appellant has been charged with oral and anal rape and with sexual assault upon two very young girls in the period April/May 1995. At the time of the offences one of the girls was aged seven and the other was aged six. The appellant was fourteen years of age at the time of the offences. Within a short time of the initial offences the appellant was requested to visit the local garda station for questioning in the company of his father. He made a statement in which, broadly speaking, he admitted the sexual activity but claimed that nothing was done under coercion, a factor which would not, of course, afford him any legal defence at a trial. It is probably fair to infer from the evidence that the matter was initially handled sensitively by the garda authorities who following on the interview immediately put the appellant in touch with the North Eastern Health Board. He was interviewed by Paula Long, Senior Clinical Psychologist in the Health Board between the 22nd of June and the 16th of August, 1995 and his parents were interviewed at the same period. No charges were brought at that time.

3. It is claimed by his mother in an affidavit that threats were made against his family because of the allegations and the gardaí had to be called out to protect him on a few occasions. There was allegedly a threat to burn the house in which they were living without regard for who would be in it at the time. A three-year-old brother of the appellant was allegedly attacked and injured with a large stone. In the same affidavit the appellant’s mother says that the family was informed by the Garda Síochána that a petition had been presented to the local County Council requesting that her family be removed from the housing estate in which they lived. She apparently indicated to the gardaí that she was considering moving back to England where they had originally lived and she claims that the gardaí approved of that idea and also indicated that because all the people concerned with the allegations were children the appellant would probably not be charged with any offence. She says that they referred to a similar incident that had occurred in the same estate involving two young boys where it seems to have been accepted that there had been illicit sex between the two boys but no charges were preferred. That incident had occurred a short time before the incident involving the appellant. It is only right to say that the gardaí in replying affidavits dispute this version of events and deny that any opinion was expressed by them to the effect that the appellant would not be charged or that they gave any advice about returning to England. The gardaí claim that the idea of returning to England came from the mother. Strictly speaking in the absence of oral evidence or cross-examination, it is not possible to resolve this conflict and, of course, the onus of proof is always on an applicant. But I think it fair to infer from the affidavits taken as a whole that the gardaí did not discourage the appellant’s mother from returning to England and furthermore her account about the other incident is borne out in the affidavit of Sergeant Noone, who at paragraph 31 concedes that a similar offence had occurred involving two young boys and that no charges were preferred but he makes the distinction that in that case the parents of the alleged victim had agreed to a caution whereas the parents of the complainants in this case did not agree to any such course of action. Indeed, it is obvious that the parents of the victims in this case have been pressing for a prosecution. While it may be perfectly reasonable for the gardaí or the D.P.P. to regard as a relevant factor the consent of the parents of a victim to the alleged culprit being let off with a caution, the converse is not the case. It would not be a proper exercise of the powers of the prosecution authorities to proceed with a prosecution against a child or young person where other more suitable courses of action might be open merely because the parents of the victims were insisting upon it. There is no direct evidence of that here but the general tenor of the evidence does lead to a suspicion that the wishes of the victim’s parents did play a major part in the decision making process.

4. As to whether the appellant’s mother was advised to go to England or not by the gardaí is not of great importance. It is quite clear that in no sense was she a fugitive and that at all material times the gardaí knew where the appellant was living in London. From September, 1995 until the 18th of March, 1996 he was in one particular address in London and the family moved to another on that date. The appellant’s twenty-five-year old stepsister remained at the original Irish address and contacted the gardaí to provide them with the relevant address and telephone number in England.

5. The English police and social services were aware of the appellant’s alleged involvement in the incidents and there was contact between them and the Irish social services and An Garda Síochána. The appellant was on a register known as the risk register in England but his name was removed from this in or about September/October, 1997. According to the mother the family was regularly telephoned by the gardaí enquiring how they and the appellant were. In or around March, 1996 however, the mother received a telephone call from the local gardaí indicating that they would be coming for the appellant and that an application for this purpose would be made to the local District Court.

6. On the 22nd of November, 1996 the family were telephoned by the local sergeant and told that a detective sergeant, Martin O’Neill, of the Dublin extradition section had made an application for extradition in the local District Court. The mother then instructed an English solicitor who got into communication with the extradition section of the gardaí in Dublin. There were also some discussions with the extradition squad in Scotland Yard. For a long time no further indication was given that the extradition application was in fact made, and the mother avers in her affidavit that the appellant continued to gain hope during that period that no such application would be made. The mother was attending child protection meetings at which her children’s various teachers were present. There was a detective constable who attended some of these meetings and at a meeting in April, 1997 he indicated that he was in contact with the gardaí and that they were “ considering” extraditing the appellant. At the next meeting in the following October the same detective constable told the mother that the Irish authorities would be applying for extradition.

7. Upon leaving school in September, 1997, the appellant had expressed a wish to join the Army and decided that he would like to do a one year course in college prior to this. To this end he started a course in art and design in September, 1997.

8. The mother goes on to depose in her affidavit that on the 2nd of February, 1998, without prior notification, police officers visited her home in order to make arrangements for the arrest of the appellant. However, he was subsequently arrested by arrangement outside the courthouse on the following day, i.e., the 3rd of February, 1998. He was arrested on foot of warrants dated the 7th of July, 1997, which warrants were not endorsed pursuant to section 1 of the Backing of Warrants (Republic of Ireland) Act, 1965 until the 23rd of December, 1997. An application for habeas corpus was then made in England on the grounds that the arrest of the appellant, after such a length of time, was an abuse of the process of the courts. That application, however, was subsequently withdrawn upon the advice of the English solicitors that the abuse of process point could be more effectively raised in Ireland. They further advised the appellant that he should volunteer to return to Ireland which he did. It was then agreed with the authorities that they would not seek his delivery to Ireland until he had finished his course in July, 1998. The appellant was ultimately delivered to Ireland on the 12th of August, 1998. He was then brought before the District Court and served with documents under the Criminal Procedure Act, 1967, and ultimately on the 12th of November, 1998 the appellant was returned for trial to the Central Criminal Court. His case was to be in the list to fix dates on the 28th of January, 1999. In paragraph 19 of the grounding affidavit the mother avers as follows:

9. In paragraph 20 the deponent further avers:

10. The mother goes on to suggest in the affidavit that the appellant will not have the benefit of certain statutory provisions relating to the trial of children and young persons for criminal offences and in particular the provisions of the Children’s Act, 1908 and the Summary Jurisdiction over Children (Ireland) Act, 1884 as amended.

11. There is really only one issue in this case. Does the undoubted delay in the making of the extradition arrangements entitle the appellant to an injunction restraining the criminal proceedings going ahead at this stage? The D.P.P. denies that there has been undue delay, or at least delay for which the State authorities are in any way responsible and that, at any rate, even if there was delay there has been no actual or presumed prejudice to the appellant caused by the delay. The sergeant in charge of the investigation swore a replying affidavit on behalf of the Director of Public Prosecutions. After going over the early history of the case he makes reference to the national juvenile office to which the case was referred to it in May, 1995. That office responded, however, by stating that the offence for which the appellant was made amenable was an excluded offence for caution under the Garda Juvenile Liaison Programme unless such a course was directed by the D.P.P. Furthermore, the “ member in charge” recommended that the appellant be dealt with by way of prosecution. On the 10th of July, 1995, a psychological assessment report was requested by the office of the D.P.P. and that report was received on the 30th of August, 1995. The garda file together with the psychological assessment was sent to the office of the D.P.P. on the 7th of September, 1995, the day after the appellant and the family left for England.

12. By a letter dated the 29th of September, 1995 from the office of the D.P.P. to the State Solicitor it was recommended that the appellant be prosecuted for section 4 rape and sexual assault of the complainants. The sergeant avers that in view of the nature of the offences, consent of the Director to summary disposal was not given. He goes on to aver that as the appellant’s family were no longer in the Irish jurisdiction the gardaí were advised either to apply for his extradition or to travel to London to speak to the family in order to see if accommodation could be reached whereby the appellant would return to the jurisdiction voluntarily. But the gardaí were advised to liaise with the Health Board first to ensure that some system of support was put in place for the appellant when he returned. The gardaí were advised to revert in six months time with a full and detailed report regarding attempts to locate the appellant, if he had not been found by them. As I have already indicated there was never any difficulty about locating the appellant. After some communications with the Health Board the office of the D.P.P., on the 19th of January, 1996, raised a query as to suitability of the appellant for the Juvenile Liaison Office Scheme and the attitude of the complainant’s parents. The gardaí communicated to the D.P.P. the objections of the parents of the victims to the appellant being dealt with under the Juvenile Liaison Scheme.

13. As there was never any problem in locating the appellant and finding out whether the appellant was willing to return voluntarily it is somewhat puzzling what happened next but there may have been some breakdown in communications. According to the affidavit of the sergeant, a stepsister of the appellant living in Ireland, informed the sergeant on the 9th of February, 1996 that the appellant did not intend to return to Ireland voluntarily. Given the history of this case and the circumstances in which the family left for England it may have been legitimate for the gardaí to have sounded out the stepsister as to the likelihood of the appellant returning voluntarily but it was quite inappropriate to regard as definite her hearsay information.

14. Further delays then ensued. The name of the relevant District Court Clerk had to be obtained but it is difficult to understand why that should have caused any delay. The extradition proceedings seem to have moved at a snail’s pace in that on the 20th of October, 1996, the extradition section of the gardaí requested specimen charges as formulated by the D.P.P. A month later on the 20th of November, 1996 the same section queried those specimen charges as formulated and the queries were answered on the 28th of November.

15. Nothing happened then until by a letter of the 12th of February, 1997, from the office of the D.P.P. the warrants and certificates prepared by the extradition section were corrected and it was directed they be amended and prepared again before being issued. Between the 24th of March, 1997 and the 7th of July, 1997 checking, cross-checking and corrections in the documentation continued. But on the 7th of July, 1997 information was sworn at the District Court and warrants were obtained for the extradition of the appellant. According to the sergeant, the warrants were forwarded to the London Metropolitan Police on the 14th of July, 1997. Presumably, they must have remained unexecuted because on the 12th of November, 1997 the U.K. authorities were requested not to execute the warrants due to confusion over the appointment of District Court Clerks arising from the High Court decision in Devaney v. D.P.P. Surprisingly this has been included in a list of reasons for the lapse of time in the statement of opposition because by late December, 1997 the Supreme Court had already reversed the High Court and no further problems remained.

16. On the 3rd of February, 1998 the appellant was arrested in London. The history of the case thereafter has already been given.

17. Although the necessary evidence had been obtained by May, 1995 the prosecution was not initiated until two years and nine months later.

18. Before the question of prejudice is considered it is necessary to ask the question was the delay excessive and inexcusable? 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 be 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 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 on 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 on by the appellant. There was, in my view, a special obligation of expedition in this case, but that obligation was not complied with in that the extradition proceedings were allowed to take an excessive length of time and this delay appears to be inexplicable.

19. The Sixth Amendment to the Constitution of the United States of America, so far as material provides that:-

20. In the seminal case in this jurisdiction relating to prosecution delay in ( The State (O’Connell) v. Fawsitt [1986] I.R. 362 this court held:-

21. The right of an accused to a trial with reasonable expedition is separate from and in addition to his right to a fair trial.

22. The decision of the Supreme Court of the United States in Barker v. Wingo 407 U.S. 514, 531 [1972], which has been cited with approval in this and other common law jurisdictions has provided helpful guidance as to the factors which would properly be taken into account in determining whether the delay on the part of the authorities was excessive. This court has accepted that all of the material circumstances should be taken into account.

23. The delay in the The State (O’Connell) v. Fawsitt was nearly four years, but at least some part of that delay was accounted for by the absence of the accused abroad or adjournments made on the consent of both parties. The “culpable” delay on the part of the authorities may have been significantly less than four years but a decisive factor was that the delay did in fact prejudice the accused in that it deprived him of an important witness.

24. It is clear from the case law however that neither actual or presumed prejudice is in all cases essential to stop a criminal prosecution. In D.P.P. v. Byrne [1994] 2 IR 236 two passages of the judgment of Finlay C.J. in the Supreme Court make this clear. The first which commences at p. 244 reads as follows:

25. The second passage of the former Chief Justice, which I think it relevant to cite is at the bottom of p. 245 where he says:

26. Although Finlay C.J. was in a minority in the view he took of the facts of that case, it is clear from the other judgments that the principles of law which he set out were accepted by all members of the court.

27. I take the view that where there is culpable delay on the part of the State authorities, then having regard to all the circumstances of the case, the delay itself may entitle the accused to an order preventing the trial irrespective of whether there is actual or presumed prejudice. In P.C. v. D.P.P. [1999] 2 IR 25 a decision also of the Supreme Court, Keane J. in his judgment said the following at p. 68:

28. In that passage Keane J. (as he then was) also recognises that there may be cases, depending on the circumstances, where a trial should not be allowed to proceed on the grounds of delay even though prejudice has not been established.

29. In this connection counsel for the appellant have referred to a High Court judgment of mine, delivered the 5th of October, 1999 in the case of P.P. v. D.P.P. [2000] 1 IR 403. 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 prohibition notwithstanding 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 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.

30. Given the history of this particular case, I think that irrespective of who is telling the truth as to what was said or not said there would have been at all material times a well-founded hope on the part of the appellant that he might not be brought to trial. That period of two years and nine months ought not to have been allowed to elapse. There was altogether unnecessary delay in relation to the extradition. In all the circumstances, I would allow the appeal. As there is no named judge as respondent but merely the Director of Public Prosecutions the appropriate order is an injunction against the respondent from proceeding further with the prosecution rather than an order of prohibition. I would, therefore, vary the order of the High Court so as to include that order.