THE SUPREME COURT
[Appeal No. 075/2013]
Denham C.J.
Hardiman J.
O’Donnell J.
MacMenamin J.
Dunne J.
BETWEEN
PATRICK DONOGHUE
APPLICANT/RESPONDENT
AND
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT/APPELLANT
Judgment of Ms. Justice Dunne delivered the 30th day of July, 2014
Background
The applicant/respondent (hereinafter referred to as Mr. Donoghue) was born on the 26th March, 1994. On the 29th March, 2010, just three days after his sixteenth birthday, members of the Gardaí called to his home. A substance was found which was believed to be heroin, together with weighing scales. On the discovery of these items, the applicant immediately took responsibility for the items and he signed an admission to this effect in the notebook of Garda Ciaran Cummins, the prosecuting Garda. His mother also signed a note reflecting the position in the notebook of the prosecuting Garda. Mr. Donoghue was arrested and detained at Coolock Garda Station and was interviewed over a two hour period in the presence of his mother and, for part of the time, in the presence of his sister. During the course of interview he again took full responsibility for the items found. Subsequently, the items found were forwarded to the Forensic Science Laboratory for analysis and it was confirmed on the 14th April, 2010 that the substance was heroin and a value of €7,560 was placed on the substance found.
Therefore, as of the 14th April, 2010, the position was that the Gardaí had carried out the arrest of Mr. Donoghue, had found the substance believed to be heroin, had detained and interviewed Mr. Donoghue who had made admissions both at the time of the arrest and in the course of interview and had the substance analysed by the Forensic Science Laboratory which confirmed the suspicions of the Gardaí that the substance was heroin. Despite the steps taken by the 14th April 2010, it was not until the 14th August, 2011 that Mr. Donoghue was charged with an offence under s. 15 of the Misuse of Drugs Act 1977. He was then released on station bail to appear before the Children’s Court on the 1st September, 2011 and on that occasion was remanded on continuing bail until the 27th October, 2011. When Mr. Donoghue was charged, he attended at Coolock Garda Station by appointment for that purpose. Thus, a period of one year and four and a half months approximately had elapsed between the date on which Mr. Donoghue was arrested and the date on which he was charged.
Whilst it was not an issue in this case it might be observed that the admissions made by Mr. Donoghue in his home prior to the interview at the Garda Station were apparently made in the absence of any information that he was entitled to access to a solicitor before saying anything to the Gardai. Following the decision of this Court in the case of Director of Public Prosecutions v Gormley, Director of Public Prosecutions v White [2014] IESC 17, the question arises as to whether or not a person being detained for questioning by the Gardai should be informed at that stage of the entitlement to legal advice before interrogation. As Clarke J said in that case, “The right to a trial in due course of law encompasses a right to early access to a lawyer after arrest and the right not to be interrogated without having had an opportunity to obtain such advice.” As I stated, this issue did not arise in this case but is one which may arise for consideration in an appropriate case.
The subsequent history of the proceedings is of relevance to the issues to be determined in this appeal.
The matter came before the District Court on the 27th October, 2011 when it was indicated that the respondent/appellant (hereinafter referred to as the DPP) had directed that the matter might be dealt with summarily. The presiding Judge, Judge Leonard, indicated that she wished to hear submissions from the defence representative pursuant to s. 75 of the Children Act 2001, (hereinafter referred to as “the Act”). She also expressed concern as to the delay in charging the applicant and requested an explanation for the delay from the DPP. The matter was adjourned accordingly to the 14th December, 2011 for this purpose and to hear submissions from the defence as to jurisdiction pursuant to s. 75 of the Act.
On the 14th December, 2011, a solicitor for the DPP told Judge Leonard that the initial period of delay was due to the requirement to involve the Juvenile Liaison Office in the matter but the principal reason for the delay was the need to obtain statements from two members of the Gardaí who had overseen the detention of Mr. Donoghue in Coolock Garda Station. Judge Leonard was not satisfied with the explanation given by the solicitor for the DPP and adjourned the matter until the 17th January, 2012 for a more detailed explanation. Subsequently, Mr. Donoghue’s solicitors wrote to the Gardaí by letter dated the 16th December, 2011 requesting that an explanation be furnished in writing as to the “exact time on which the relevant actions were taken and the reason for the timeframe deployed”. It was requested that a response be received as soon as possible. A letter was furnished in response to this request by Garda Cummins and was received by Mr. Donoghue’s solicitors on the 13th January, 2012. In the course of that letter it was explained that after the 29th March, 2010, a file was compiled for the National Juvenile Office with regard to permission to charge Mr. Donoghue. On receiving directions from the National Juvenile Office “a thorough investigation file was then compiled”. This included sending a number of exhibits for fingerprint analysis. This took a number of months to be completed and the analysis did not yield any identifiable prints. It was then explained that the investigation file was not possible to complete as statements had to be received from a number of Garda witnesses. One of those was said to have been transferred to the Airport Garda Station shortly after the incident and then, on the 12th August, 2010, he was transferred to Claremorris Garda Station. His statement was only received by the prosecuting Garda in January 2011. A further statement was obtained from another member of the Gardaí in late March 2011. The investigation file was then completed and sent to the DPP on the 9th May, 2011. On the 25th May, 2011 directions were received to charge Mr. Donoghue. Garda Cummins explained in the letter that he called to Mr. Donoghue’s home address immediately, made an appointment to charge him in the presence of his mother but he failed to turn up for that appointment. The prosecuting Garda again called to his home in June requesting that he contact Garda Cummins with a view to making an arrangement to charge him but Mr. Donoghue did not contact him. Subsequently, in late July of 2011, Garda Cummins spoke to Mr. Donoghue at his home address and requested him to come to the Garda station with his mother for the purpose of charging him. An appointment was made to attend the station that evening but was not kept. Finally, Mr. Donoghue attended by appointment on the 14th August, 2011 in the presence of his older sister and was then charged.
The matter then came back before the Court on the 17th January, 2012 and on that occasion Garda Cummins outlined in Court the reasons for the delay as explained by him in the letter of the 13th January, 2012. That letter did not go into great detail about the purpose for which the statements of the two Gardaí referred to were required but it appears that their statements were necessary in relation to the periods of detention of Mr. Donoghue in Coolock Garda Station on the date of his arrest.
The hearing on the 17th January, 2012 took place before Judge Smyth. He heard a submission from Mr. Donoghue’s solicitor to the effect that the reasons given for the delay were unsatisfactory and a further submission to the effect that there was authority for the proposition that delay is of particular significance in juvenile cases and as to prejudice suffered by the applicant in that there was no practical reality to the matter being disposed of before his eighteenth birthday and that as a result, the applicant would be dealt with in an adult court with a different sentencing regime to that available to a child. Judge Smyth declined to strike the matter out. He then heard submissions pursuant to s. 75 of the Children Act 2001 and having done so refused jurisdiction and remanded Mr. Donoghue on continuing bail to appear again on the 14th February, 2012 for service of a book of evidence. A book of evidence was duly served on the 14th February, 2012 and Mr. Donoghue was sent forward to appear before Dublin Circuit Criminal Court for mention on the 9th March, 2012. On that date the matter was further listed for mention on the 3rd May, 2012.
On the 16th April, 2012, an order was made in the High Court granting leave to seek relief by way of judicial review (Peart J.). The matter came on for hearing before the High Court on the 29th January, 2013 and Birmingham J. granted the relief sought, namely an injunction by way of judicial review restraining the DPP from prosecuting Mr. Donoghue. The DPP has appealed from that decision.
Judgment of the High Court
The learned trial Judge concluded that there had been significant, culpable prosecutorial delay in this case. He observed that:
“It has long been recognised that there is a particular and special duty on state authorities to provide a speedy trial for a child or young person. That principle was first articulated in the Supreme Court decision of B.F. v. D.P.P. [2001] 1 IR 656 where judgment was delivered by Geoghegan J. In the case of Jackson v. D.P.P. and Walsh and D.P.P., judgment of Quirke J. 8th December 2004, it was confirmed that the principle was of general application and not confined to sexual offences.”
On the basis of his conclusion that there was culpable prosecutorial delay in this case, he went on to consider what the consequences of delay were in the case before him, having expressly stated that he was of the view that the case was one which would be in all likelihood dealt with by way of a plea of guilty. He noted that even if the charge was fully contested, there was no reason to believe that any specific prejudice in contesting the case would have arisen by reason of the delay.
Birmingham J. noted that had the case come before the Court when it ought to have done that Mr. Donoghue would have benefited from the provisions of s. 93 of the Act as substituted by s. 139 of the Criminal Justice Act 2006 which provides for anonymity in respect of a child defendant. The trial Judge was of the view that that section was particularly significant when considered in combination with the provisions of s. 258 of the Act allowing for convictions to be spent after three years in certain circumstances. As Birmingham J. observed:
“The ability to expunge the record of conviction is particularly valuable if the original conviction did not and could not receive publicity.”
In addition, had the case come to Court when Mr. Donoghue was still a child, he would have been entitled to the benefit of s. 96 of the Children Act 2001 which provides that a sentence of detention should be imposed only as a measure of last resort. He would also have had the benefit of s. 99 of the Act which mandates the obtaining of a probation report where a court is of opinion that the appropriate sanction is detention.
Birmingham J. also referred to s. 75 of the Act which relates to the determination of the jurisdiction of the Court to deal summarily with indictable offences and in particular the provisions of s. 75(2) which states:
“In deciding whether to try or deal with a child summarily for an indictable offence, the Court shall also take account of -
Birmingham J. pointed out that had such a hearing taken place in 2010, the presiding Judge would have had to decide whether to deal summarily with a sixteen year old or send that child forward for trial to the Circuit Court. When the issue of jurisdiction was finally dealt with by Judge Smyth on the 17th January, 2012, Mr. Donoghue was within ten weeks or so of his eighteenth birthday. On that basis the learned trial Judge concluded that the case was not likely to have been concluded before Mr. Donoghue attained his majority. Birmingham J. concluded that the prospects of Mr. Donoghue staying in the District Court would have been significantly better had the case come before the Court in 2010. Thus he concluded that there had been unacceptable delay in the case giving rise to serious consequences and on that basis an injunction was granted restraining the Director of Public Prosecutions from proceeding with the trial.
Delay
The first question to be determined in this appeal is whether the learned trial judge was correct in concluding that the delay in prosecuting Mr. Donoghue amounted to blameworthy or culpable prosecutorial delay. Ms. McDonagh, S.C., on behalf of the DPP contended that while the delay in this case was significant, it did not fall into the category of culpable delay. Mr. Hartnett, S.C., on behalf of Mr. Donoghue disagreed and characterised the delay as extraordinary.
As pointed out previously, Mr. Donoghue was arrested on the 29th March, 2010. The investigation file was sent to the DPP on the 9th May, 2011. Directions to charge him were received on the 25th May, 2011 and ultimately Mr. Donoghue was charged on the 14th August, 2011.
A number of stages can be identified in the period from the initial arrest to the date of charge. Following the initial arrest and detention of Mr. Donoghue, steps had to be taken to analyse the substance found. Once it was confirmed to be heroin, the file was sent to the National Juvenile Office. As a result of its directions it was necessary to compile the investigation file including a requirement to analyse fingerprint evidence.
The Act contains provisions at sections 17 to 51 in relation to the Juvenile Diversion Programme aimed at preventing young offenders from entering the normal criminal justice system. It is part of the policy underpinning the Children Act 2001 that children should be kept out of the criminal justice system where possible; obviously, some time will be taken in assessing whether an individual is suitable for diversion to the Juvenile Diversion Programme. Inevitably, this must cause some delay in the prosecution of young offenders. No complaint could be made about the delay caused by the necessity to engage with the National Juvenile Office and it is fair to say that no such complaint was made by Mr. Donoghue. Thus, in considering the delay in any case involving a young person, it is important to bear in mind that some allowance must be made for the time taken up by the involvement of the National Juvenile Office. Such delay will, of course, not arise in the case of an adult offender.
Apart from any delay caused by the involvement of the National Juvenile Office, two further periods of delay arise in this case. There is the delay in completing the investigation file and submitting it to the DPP and the period of delay after directions were received from the DPP and the charging of Mr. Donoghue. Complaint was made by the DPP that the latter period of delay was attributable to Mr. Donoghue in not making himself available for charging before August 2011.
The explanation for the delay in respect of the investigation file has already been set out. It concerns the delay in obtaining statements from two members of the Gardaí. The statements of Sergeant Godfrey and Garda Osborne were required in relation to the detention of Mr. Donoghue in Coolock Garda Station. As such, there is nothing to suggest that their statements would have been anything other than straightforward. It is difficult to understand why it took so long to obtain the statements of Sergeant Godfrey and Garda Osborne. There is a partial explanation for the delay in respect of Sergeant Godfrey but no explanation whatsoever for the delay in respect of Garda Osborne. In truth, there is no adequate explanation for the delay in completing the investigation file.
The next period of delay to be considered is that following the receipt of directions from the DPP and relating to the availability of Mr. Donoghue to be charged. It is the contention of the DPP that Mr. Donoghue contributed to the overall delay during this period. It may well be that delay in charging an individual occurs because that individual cannot be found by the Gardaí following reasonable attempts to find him or her. There is no evidence in this case however to suggest that Mr. Donoghue deliberately or wilfully made himself unavailable to the Gardaí between the end of May 2011 when directions were received and the 14th August, 2011 when he was charged, by appointment. The information before the Court is that Garda Cummins called to the home of Mr. Donoghue on receipt of directions; he called again in June 2011 and left a calling card. Finally, he called in late July 2011, spoke to Mr. Donoghue’s mother and made an appointment for him to attend the Garda station that evening. He did not attend that evening but did so by appointment on the 14th August, 2011. On the evidence before the court, it does not appear that there was any sense of urgency on the part of the Gardaí in seeking out Mr. Donoghue for the purpose of charging him with the offence herein. Accordingly, I am satisfied that the finding of the learned trial judge that the delay was not attributable to the actions of Mr. Donoghue was correct.
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.
It would be helpful at this point to consider the jurisprudence which informed the learned trial judge in coming to the conclusion that there was blameworthy prosecutorial delay starting with the Supreme Court decision in B. F. v The Director of Public Prosecutions 2001 1 IR 656, a judgment of Geoghegan J. where he observed at p. 666:
“In this connection counsel for the appellant have referred to a judgment of the High Court (Geoghegan J.) in P.P. v Director of Public Prosecutions 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 the absence of prejudice. The decision was not appealed to the Supreme Court. To some extent by analogy, I also take the view that in the case of a criminal offence alleged to have been committed by a child or 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.”
The right to a speedy trial is a fundamental part of our criminal jurisdiction 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 Section 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. For that reason, I am satisfied that for the purpose of considering whether or not there has been blameworthy prosecutorial delay in the case of a child or young person, one must take into account the special duty identified by Geoghegan J. in the case of B. F. v Director of Public Prosecutions. However, it is important to emphasise that this duty is only one of a number of factors, including, inter alia, the seriousness of the offence and the complexity of the case, to be taken into account in considering whether or not there has been blameworthy delay in any given case. What may be excusable delay in the case of an adult in any given case may not be acceptable in the case of a child alleged to have committed such an offence.
Having regard to all the circumstances of this case and bearing in mind the fact that Mr. Donoghue was a child at the time of the commission of the alleged offence I am satisfied that there was ample evidence before the High Court to enable the learned trial judge to reach the conclusion that this is a case in which there was “significant, culpable prosecutorial delay.”
Grounds of judicial review
Before addressing the issue as to whether the learned trial judge was correct in his approach having found that there was blameworthy prosecutorial delay, it is necessary to consider one further point raised by the DPP. This issue concerns an argument that the learned trial Judge determined the application for judicial review on grounds upon which leave had not been granted. Essentially, complaint was made that in the course of the hearing before the learned trial Judge, counsel on behalf of Mr. Donoghue made submissions on the effects of s. 258 of the Act (relating to the expunging of convictions after three years) coupled with the provisions of s. 93 (relating to reporting restrictions). It had been argued before the learned trail judge that the loss of anonymity faced by Mr. Donoghue by virtue of the fact he was likely to be an adult by the time the proceedings were completed meant that he would not be entitled to anonymity as he would be if the provisions of the Act applied and that even if his conviction was expunged, he could still be identified as someone with a conviction from any report in the media still in existence. Complaint was also made that in the course of his judgment, the learned trial Judge identified as “perhaps the area of greatest potential importance”, the provisions of s. 75 of the Act. It was submitted that no arguments were addressed in relation to s. 75 in the High Court.
By way of response counsel on behalf of Mr. Donoghue argued that the case put forward in the High Court was that he had been prejudiced by the delay in charging him as he would be dealt with as an adult and not as a juvenile. Accordingly, it was submitted that he could not avail of the sentencing provisions of the Act and that that was a form of prejudice. In the course of argument before the learned trial Judge, reference was made to the fact that the applicant would not be entitled to anonymity as provided for in s. 93 of the Act. Reference was also made to s. 258 and it was pointed that the benefit of s. 258 would be diminished in circumstances where a party before the Court had lost the anonymity provided for in s. 93. Counsel further argued that the issue raised was not a separate ground in itself but was an illustration of the prejudice that would be suffered by Mr. Donoghue in being tried as an adult and not as a juvenile.
In support of her argument on this issue, counsel on behalf of the DPP relied on the decision in the case of AP v. DPP [2011] 1 IR 729. In that case, Denham J. (as she then was) said (at p. 734):
“When an applicant seeks leave to apply for judicial review he does so on specific grounds stated in the statement required. On the ex parte application for leave the High Court Judge may grant leave on all, or some, of the grounds sought or may refuse to grant leave. The order of the High Court determines the parameters of the grounds upon which the application proceeds. The process requires the applicant to set out precisely the grounds upon which the application is to be advanced. On any such application the High Court has jurisdiction to allow an amendment of the statement of grounds, if it thinks fit. Once an application for leave to appeal has been granted the basis for the review by the court is established.”
She went on to say (at p. 734):
“The High Court, in a wide ranging judgment, refused the application. In the analysis by the High Court Judge he addressed issues outside the grounds granted for the judicial review, in the absence of any order, or consent, to amend the statement of grounds. In this he fell into error. A court, including this court, is limited in a judicial review to the grounds ordered for the review on the initial application, unless the grounds have been amended. In this case the grounds for review are limited, essentially that a fourth trial would be an abuse and unfair, and were not amended.”
The passages referred to from the judgment in AP v. DPP referred to above are a useful reminder of the parameters of judicial review. An application for judicial review is generally made ex parte and if leave is granted, leave is granted on specific grounds. The matter then proceeds on the basis of the grounds for which leave to apply for judicial review have been granted. There is, of course, scope for the amendment of grounds. In this case, Mr. Donoghue relied, inter alia, on the following ground:
“The applicant had just passed the age of sixteen at the time of the alleged offences the subject of Bill No. 166/2012 now pending before Dublin Circuit Criminal Court. As a result of the delay of the respondent in charging him, the applicant will now be dealt with as an adult and not as a juvenile. As a result of this delay therefore, the applicant has suffered prejudice. The provisions of Part 9 of the Children Act 2001, including the mandatory preparation of a probation report prior to sentencing and the application of the principle that a period of detention should only be ordered as a measure of last resort, will not apply to the applicant.”
It is clear from the grounds set out above that the essence of the complaint made as to the prejudice suffered by Mr. Donoghue as a result of the delay in charging him was that he would be dealt with as an adult and not as a juvenile. On that ground it was contended that he had suffered prejudice. The fact that Mr. Donoghue chose in the statement of grounds to reference the provisions of Part 9 of the Children Act 2001 did not in any way inhibit him in making submissions as to the full effect of that prejudice.
I agree with the submissions made on behalf of Mr. Donoghue. Making reference to specific provisions did not, in my view, preclude counsel for the applicant referring to other provisions of the Act which would no longer apply if he was tried as an adult as opposed to a juvenile. The nature of the case being made was clear and precise. If tried as a juvenile, Mr. Donoghue would have the benefit of the various provisions of the Children Act 2001 but if tried as an adult, those provisions, to a large extent, would not be applicable to him. Therefore, I find it somewhat difficult to understand how the DPP could have been taken by surprise by a reference to provisions of the Children Act 2001 other than those contained in Part 9 of the Act.
It is important to bear in mind what the learned trial Judge actually said in this regard. He stated that if the case had come to Court when it ought to have done, Mr. Donoghue would have benefited from the provisions of s. 93 of the Act as substituted by s. 139 of the Criminal Justice Act 2006. He added:
“It seems to me that this provision is of considerable practical significance. That is so in particular when the section is considered in combination with s. 258 of the Children’s Act, which provides that subject to certain conditions, offences committed by persons under eighteen years can become ‘spent’ after three years. The ability to expunge the record of conviction is particularly valuable if the original conviction did not and could not receive publicity.”
It is also necessary to consider the criticism of the reference by the learned trial Judge to the provisions of s. 75 of the Children Act 2001. The provisions of s. 75(2) have been set out above; a hearing under s. 75 is necessary to determine in what jurisdiction the case will be dealt with. An unnecessary delay in the prosecution of a case involving a juvenile may result in a situation where the juvenile is almost eighteen years of age by the time such a hearing takes place. Given that s. 75(2) provides that in deciding whether to deal with a child summarily the age of the child concerned is one of the factors to be taken into account, it is difficult to say in any given case what effect the passage of time would have on the determination of jurisdiction. However, although complaint was made by counsel on behalf of the DPP that no argument was advanced in the course of the hearing before the learned trial Judge on the subject of s. 75 and further complaint was made that Mr. Donoghue had not sought to impugn the decision of the District Court under s. 75, it seems to me that the comments of the learned trial Judge on s. 75 were not dispositive of the case. The learned trial Judge referred to s. 75 as an area of “greatest potential importance”. His observations may be of interest. However, as he himself has made clear, the effect of s. 75 is an area of potential importance only. It may have relevance or bearing in a particular case but had none in this case, given that there was no challenge to the decision made in the District Court as to jurisdiction. Accordingly, I cannot see that any complaint can be made in relation to the observations of Birmingham J. on s. 75 in the course of the decision.
Therefore, I am satisfied that the learned trial Judge did not determine the application before him on grounds upon which leave had not been granted.
The consequences of delay
I now want to consider the arguments of the DPP in relation to the consequences for a prosecution once it has been decided that there has been blameworthy delay. The argument on behalf of the DPP was founded on the decision in the case of PM v. Director of Public Prosecutions [2006] 3 IR 172 in which it was held that prosecutorial delay in and of itself was not sufficient to prohibit a trial, rather “It was necessary to show that one or more of the interests protected by the right to expeditious trial must also be shown to have been so interfered with as would entitle the applicant to relief”. (per Kearns J., as he then was). Kearns J. went on to address the well known US Supreme Court decision in the case of Barker v. Wingo [1972] 407 U.S. 514 and observed at page 181 of the judgment as follows:
“The United States Supreme Court went on to state that the right to a speedy trial was ‘vaguer’ than other procedural rights in that it was impossible to determine with precision the circumstances in which it had been denied. As a consequence, it adopted a balancing test, the operation of which compelled courts to approach speedy trial cases on an ad hoc basis. It identified at least four factors to be taken into account: the length of the delay, the reason for the delay, the accused's assertion of his right and prejudice. Under the last of these headings, Powell J. identified three interests protected by the right to a trial with reasonable expedition: -
Later in the course of the judgment at p. 183, Kearns J. considered the approach taken in the Supreme Court cases of P.P. v. Director of Public Prosecutions [2000] 1 IR 403 and P.M. v. Malone [2002] 2 IR 560. In particular he referred to a passage from the judgment of Keane C.J. in P.M. v. Malone at page 581 where it was stated:
“The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this stage. If this were a case in which it could be said that his ability to defend himself had been impaired and, as a result, there was a real and substantial risk of an unfair trial then, as pointed out by Denham J. in D. v. Director of Public Prosecutions [1994] 2 I.R. 465, the applicant's right to a fair trial would necessarily outweigh the community's right to prosecute. Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”
Having referred to the passage above, Kearns J. then went on to say at page 185 of the judgment as follows:
“I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone [2002] 2 IR 560 is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.
As part of the balancing exercise it should also be borne in mind that an order of prohibition may not be the only remedy available in such circumstances. A court may have the ability to direct that a particular trial be brought on speedily and be given priority, although precisely how this would be policed or operated in practice may be problematic.”
Interestingly, Geoghegan J. also delivered a judgment in that case in which he commented on the earlier judgment in the case of P.P. v. Director of Public Prosecutions in which the Supreme Court judgment had been delivered by him. He commented at page 176 of the judgment in PM v. Director of Public Prosecutions as follows:
“One of the reasons why I feel constrained to write a short judgment of my own is because the High Court Judge's decision appears to have been based to a large extent on a decision of mine in the High Court in P.P. v. Director of Public Prosecutions [2000] 1 IR 403. Notwithstanding the words I may have used in that judgment, I entirely accept that blameworthy prosecutorial delay does not automatically give rise to a right to an injunction. What I intended to convey was that in a case where there was very serious blameworthy delay on the part of the gardaí, prosecuting authorities should not necessarily be allowed to say that the extra delay caused no provable actual prejudice. The courts have a role in ensuring that the entire criminal process is fair but more importantly, the right to an expeditious trial which is a constitutional right is seriously infringed if there is substantial blameworthy delay on the part of the gardaí or the respondent and that is a factor which the court should take into account. I entirely agree that this may have to be balanced by the nature of the offence or some other factors in the particular case. P.P. v. Director of Public Prosecutions was never appealed by the respondent and it has been regularly referred to in argument by counsel ever since. Hopefully, this is because, in practice, it has not been interpreted in the literal way adopted by the High Court Judge in this case. I fully acknowledge, however, that it was my choice of wording which led him to that position.”
He went on to say (at p. 177):
“In my view, the position became clarified in B.F. v. Director of Public Prosecutions [2001] 1 IR 656. That was a decision of this Court in which I happened to give the judgment but it was agreed with by Keane C.J. and Murphy J. Although P.P. v. Director of Public Prosecutions [2000] 1 IR 403 was referred to in the judgment, it is perfectly clear that the decision in B.F. took into account all the surrounding circumstances and the nature of the offence and not merely the prosecutorial delay. I do not think that there is any real conflict between B.F. on the one hand and P.M. v. Malone [2002] 2 IR 560 cited above on the other. It is not without significance that Keane C.J. sat on both courts.
In summary, therefore, I entirely agree that a balancing exercise must be carried out but if there is serious blameworthy prosecutorial delay that is one factor in itself and of itself that must be put into the melting pot when the balancing exercise is being considered.”
For completeness it would be helpful to refer once more to the decision of the Supreme Court in B.F. v. DPP [2001] 1 IR 656, which, as already stated, was a judgment of Geoghegan J. In the course of his judgment in that case, Geoghegan J. commented (at p. 666) as follows:
“In this connection counsel for the appellant have referred to a judgment of the High Court (Geoghegan J.) in P.P. v. Director of Public Prosecutions [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 the absence of prejudice. The decision was not appealed to the Supreme Court. To some extent by analogy, I also take the view that in the case of a criminal offence alleged to have been committed by a child or 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.”
Referring to those authorities it was submitted on behalf of the DPP that Geoghegan J. was referring to two types of case: (a) the historical sexual abuse cases; and (b) by analogy offences committed by young people. It was noted that in relation to the former the law has been clarified and provides that a balancing test applies. Further, it was submitted that by the same analogy a balancing test should also apply to offences committed by young people.
Counsel on behalf of the DPP having referred to those judgments went on to argue that none of the interests identified by Powell J. in Barker v. Wingo as flowing from the right to an expeditious trial were present in this case save perhaps the right to minimize anxiety and concern and potentially the possibility that the defence might be impaired. It was pointed that the learned trial Judge commented in the course of his judgment that if the charge was to be contested by Mr. Donoghue, there was no reason to believe that he would have experienced any specific prejudice in contesting the case. One is therefore left only with the possibility of “the stress of an impending prison sentence hanging over him”, as referred to in the statement of grounds. Thus, a complaint was made that the learned trial Judge did not conduct a balancing exercise but instead relied on the judgment in the case of BF v. DPP. Were such a balancing exercise to have been conducted, it was contended that no unnecessary stress or anxiety by reason of the delay had been demonstrated. Further, no account was taken by the learned trial Judge of other matters that should have been considered in a balancing exercise such as the right of the people to the prosecution of offences. In addition, complaint was made that the learned trial judge failed to place appropriate (or any) weight on the admissions made by Mr. Donoghue.
By way of response, the point was made that insofar as there was a finding by the learned trial Judge that there was no specific prejudice to a fair trial of Mr. Donoghue, this arose in circumstances where it was made clear that he was likely to plead guilty. It was pointed out that the thrust of the case made on behalf of Mr. Donoghue was that he would suffer prejudice but the prejudice related to the sentencing hearing as opposed to the trial itself. It has not been argued that this was a case in which blameworthy prosecutorial delay alone was sufficient in the absence of prejudice to justify an order of prohibition. On the contrary the case being made at all times was that Mr. Donoghue had, in fact, been prejudiced by the delay. It was on that basis that reliance was placed on the decision in BF v. Director of Public Prosecutions and on Jackson and Walsh v. Director of Public Prosecutions [2004] IEHC 380 and AC v. Director of Public Prosecutions [2008] 3 IR 398 to the effect that there is a particular onus on the prosecution to ensure a speedy trial in the case of a juvenile.
Thus it was submitted that the learned trial Judge had correctly balanced the relevant factors before the Court, such as the delay in obtaining the relevant Garda statements against the prejudice that Mr. Donoghue would suffer in being sentenced as an adult.
The decision of the High Court in the case of Jackson and Walsh v. Director of Public Prosecutions [2004] IEHC 380 is of some interest. The circumstances of that case were that two individuals were charged with offences of violent disorder relating to an incident in March 2000. One was fifteen years old at the time of the alleged offence; the other was sixteen years old. One was arrested and charged in November 2001; the book of evidence in his case was not served until March 2003. The other applicant was charged in March 2003. Quirke J. concluded in the course of his judgment (at p. 14):
“. . . that some degree of prejudice to the capacity of the accused persons in this case to defend themselves must be presumed by reason of the inordinate period of time which the State inexplicably allowed to pass before bringing them to trial.”
Quirke J. rejected an argument by counsel on behalf of the DPP in that case that the principles identified by Geoghegan J. in the case of BF v. Director of Public Prosecutions at pages 663 to 664 in relation to offences committed by a child should only be applied to sexual offences committed by a child. Quirke J. stated (at p. 16):
“It is no secret that persons in their late teenage years have particular vulnerabilities. These vulnerabilities can be compounded by difficult or deprived family or social circumstances and by a variety of other causes. The interests of the community will not be served by subjecting such persons to substantial delay in confronting them with complaints of criminal activity made against them.
The interests of the community will surely be better served by efficient action on the part of the State authorities designed to ensure that young persons acquitted of criminal offences may be enabled to resume normal life and those convicted may be dealt with in such a manner as to reduce the risk to the community of further criminal activity.
Whilst the right of the community to have criminal offences prosecuted is a right which must, if appropriate, be vindicated by the courts the State authorities also have a responsibility to take such steps as may be necessary to vindicate that right.”
The observations of Quirke J. as to society’s interest in the speedy prosecution of young offenders are well made and reflect the policy behind the Children Act 2001 including the provisions for the diversion of young offenders from criminal activity, to which reference has been made earlier in the course of this judgment. Quirke J. concluded:
“I take the view that where a criminal offence is alleged to have been committed by a child or a young person there is always a special duty upon the State authorities (over and above its fundamental duty), to ensure a speedy trial of the child or young person in respect of the charges preferred.
I am satisfied that the State authorities have not discharged that duty in respect of either of the applicants in these proceedings.
I am satisfied further that the breach of duty on the part of the prosecuting authorities was sufficiently grave to warrant an order preventing the trials of both applicants even in the absence of prejudice. Although no specific prejudice has been proved in these cases a degree of prejudice may be presumed in respect of each applicant having regard to the age of each applicant at the material times.”
Given that this is a case in which I am satisfied that the learned trial Judge correctly determined that there was blameworthy prosecutorial delay, what more must be considered by a court in determining whether or not to prohibit a trial?
It is clear from the authorities referred to above that blameworthy prosecutorial delay alone will not suffice to prohibit a trial. As Kearns J. said in PM v. DPP, in the passage referred to above:
“An applicant for such relief must put something more into the balance . . . to outweigh the public interest in having serious charges proceed to trial.”
Geoghegan J. in the course of the same case made the point that:
“If there is serious blameworthy prosecutorial delay that is one factor in itself and of itself that must be put into the melting pot when the balancing exercise is being considered.”
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 eighteenth birthday. Therefore, in any given case a balancing exercise has to carried out in which a number of 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.
The learned trial judge in the course of his judgment outlined a number of features that would have applied to Mr. Donoghue had he been prosecuted expeditiously which were no longer applicable given that Mr. Donoghue would be tried as an adult as opposed to a child. They included the loss of anonymity, the fact that s. 96 of the Act (to the effect that a sentence of detention should only be used as a last resort) would no longer apply and the loss of the mandatory requirement to obtain a Probation Report in the circumstances set out in s. 99 of the Act. As the learned trial judge said, these are matters of real significance. Having done so he commented:
“Two years in the life of a sixteen 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 two years or more is to be lost then the court’s capacity to intervene effectively will be greatly reduced.”
It is difficult to disagree with the comments made by the learned 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.
Mr. Donoghue has demonstrated that the delay in this case has led to significant consequences for the manner in which he would be dealt with at trial. To paraphrase the words of Kearns J. in PM v. Director of Public Prosecutions, he has put something more into the balance to outweigh the public interest in having serious charges proceed to trial.
Conclusion
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 eighteen 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 learned trial judge correctly identified a number of adverse consequences that flowed from the delay. Accordingly, I am satisfied that the learned trial judge was correct in reaching his conclusion that an injunction should be granted preventing the Director of Public Prosecutions from further prosecuting the case against Mr. Donoghue.
Therefore, I would dismiss the appeal.
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