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Cite as: [2014] IESC 59
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Judgment Title: Cullen v the Director of Public Prosecutions Neutral Citation: [2014] IESC 59 Supreme Court Record Number: 342/13 High Court Record Number: 2012 348 JR Date of Delivery: 16/10/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., O'Donnell Donal J., McKechnie J., Dunne J. Judgment by: The Court Status of Judgment: Approved
Outcome: Dismiss Notes on Memo: Judgment of the Court | ||||||||||||
THE SUPREME COURT Appeal No. 342/13 Denham C.J. Murray J. O’Donnell J. McKechnie J. Dunne J.
Sharon Cullen Applicant/Respondent and
The Director of Public Prosecutions Respondent/Appellant
Judgment of the Court delivered on the 16th October, 2014, by Denham C.J. 1. Once again the issue of prosecutorial delay comes before the Court. 2. This is an appeal by the Director of Public Prosecutions, “the DPP”, from the judgment of the High Court (O’Malley J.) delivered on the 17th June, 2013, and the Order of 8th July, 2013, by which the DPP was injuncted from further prosecuting the applicant to these judicial review proceedings, Sharon Cullen, “ the applicant”, on two charges arising from a serious assault against her father in 1988. The Background facts
(ii) On the evening of the 13th May, 1988 Mr. Payne went to hospital as usual. Mrs. Payne was out. The applicant was at home with Christopher Junior and a friend of hers named Jennifer O'Dwyer, the sister of the applicant's then boyfriend Jessie O'Dwyer. Late in the evening a number of men came into the house wearing balaclavas. These men were Jessie O'Dwyer (aged 18), Stephen McKeever (aged 19) and two others. It seems to be clear that these others played a peripheral role and it is not necessary to name them for the purposes of this judgment. All of them were recognised and subsequently named by Christopher Junior, then aged 13, who was threatened with a knife by McKeever. (iii)The three youngsters were put in one of the bedrooms and tied up. Philomena Payne arrived home at about 11.30 pm and she too was tied up. Mr. Payne came home from the hospital some time after midnight. It appears that he was then subjected to a savage assault by O'Dwyer and McKeever, and suffered serious head injuries. (iv)The injuries were not in themselves fatal. Mr. Payne was in a coma for some time, but returned home to his family in September, 1988. He does not appear to have made a full recovery. When he died on the 28th November, 1988 the causes of death were multiple but were stated to include ‘old head injury’. 5. During the course of these statements, Mr. O’Dwyer and Mr. McKeever admitted their own involvement in the attack on Mr. Payne. Mr. O’Dwyer and Mr. McKeever both stated that they were asked by the applicant to have her father “done” because he was beating her and her mother, Mrs. Payne. 6. In their statements, the men stated that they had a conversation with the applicant and her mother in which they agreed the terms of the attack and this included the men receiving a sum from the insurance proceeds of an earlier burglary. 7. On the 23rd June, 1988, the investigation file was submitted to the DPP. The four men were charged and returned for trial to the Central Criminal Court, where the case was listed for trial on the 3rd July, 1989. The applicant and her mother attended on that date as witnesses for the prosecution, and there were guilty pleas from the four men to the charges before them. Mr. O’ Dwyer and Mr. McKeever pleaded guilty to assault with intent to do grievous bodily harm. They were sentenced each to over nine years on the 27th July, 1989. 8. On the 25th July, 1989, the DPP issued directions to charge the applicant and her mother. On the 16th August, 1989, a warrant to arrest the applicant was issued, which refers to her as being of “No Fixed Abode.” The arrest warrant was not executed. The applicant and her mother had left the jurisdiction with her brother. 9. A review of the case was undertaken in November, 2009 by the Serious Crime Review Team. A number of people were interviewed and made fresh statements. In January, 2010, the Gardaí spoke to Mr. Payne’s brother Geoffrey, to notify him of the review of the case. He informed them that the applicant was married and living in Ireland. The Gardaí located the applicant in Co. Cavan in early 2010. 10. An updated file was subsequently sent to the DPP in July, 2011. The DPP directed the Gardaí to proceed with the original charges in December, 2011. The applicant was arrested and charged on the 19th December, 2011. Events between the 3rd July, 1989, and the 19th December, 2011 12. It was deposed that directions were given to charge the applicant on the 25th July, 1989, once Mr. O’Dwyer and Mr. McKeever had pleaded guilty, and queries in relation to the applicant and her mother had been clarified. The DPP stated, however, that at that stage the applicant could not be located. 13. There are three sworn affidavits furnished by Detective Superintendent Brian Sutton. These are to the effect that the applicant “fled” the country; that efforts were made at all relevant times to locate the applicant, including the attendance and surveillance of the applicant’s grandmother’s funeral in 2006, at which time she was not located. 14. The Gardaí stressed that they were searching for the applicant under the name Sharon Payne, but that she was actually going under her married name Mrs. Sharon Cullen. This is cited as a principal reason for the failure of the Gardaí to locate the applicant. The Gardaí deposed that they were unaware of the fact that the applicant resided in this jurisdiction until 2010, at which time Geoffrey Payne had informed them of same. 15. The Gardaí explained that they did not arrest the applicant when they became aware of her presence in Co. Cavan in 2010 as it was necessary to then review the case. An updated file was sent to the DPP on the 11th July, 2011. 16. The applicant deposed that she did not leave the country until late July, 1989, when she was brought with her brother by her mother to England to “start a new life”. In 1990 the applicant gave birth to her first child by her, now husband, Con Cullen. The applicant got accommodation and child benefit under the name Sharon Payne. The applicant had a bank account and paid taxes under that name. 17. The applicant married Con Cullen in 1995 and has used the name Cullen since then. The learned High Court judge found as fact, that the applicant’s maiden name, Payne, was noted on her first passport in 2002/2003 at her request. 18. The applicant moved to Ireland with her husband and two children in 2004. They established themselves in Co. Cavan, where they both attained employment. The applicant applied for a PPS number, for this purpose the applicant provided her maiden name and last address in Ireland. The applicant received benefit from 2005 to 2008 under the name Sharon Payne, until her name was updated to reflect her married name. 19. Geoffrey Payne, the brother of the deceased, has stated that he remained in contact with the applicant. He stated that he informed Mr. O’Carroll, the prosecuting Garda involved in the Payne case, of the applicant’s whereabouts in September 1989, when he was asked about the whereabouts of his sister-in-law. Geoffrey Payne confirmed that the applicant attended the funeral of his mother, and sat with him at the front of the church and went to a local public house afterwards. When contacted by the Serious Crime Review Team in 2009, Geoffrey Payne informed them that the applicant was married and living in Ireland. He was not asked for an address, he maintains he would have provided same were he asked. 20. As previously mentioned the applicant was arrested and charged on the 19th December, 2011.The applicant was granted leave to seek reliefs by way of judicial review on 23rd April, 2012, to injunct the DPP from prosecuting her. Relevant dates 14th May, 1988:- The four men were arrested and made incriminating statements. The applicant, then 15, gave a witness statement in which she is also said to have made incriminating statements. 15th May, 1988:- Directions were given by the DPP to charge the four men involved in the assault. 23rd June, 1988:- Investigation file submitted to the DPP. 3rd July, 1989:- The four men entered pleas of guilty. (The applicant and her mother were in attendance at court on this date.) 27th July, 1989:- The four men were sentenced. The DPP issued directions to charge the applicant and her mother. July, 1989:- (exact date unknown):- The applicant moved to England, with her mother and brother 16th August, 1989:- A warrant to arrest the applicant was issued. January, 2010:- The Gardaí were notified of the applicant’s presence in the jurisdiction by the victim’s brother, the applicant’s uncle. The Gardaí located the applicant in Co. Cavan. July, 2011:- The DPP was sent an updated file by the Gardaí. December, 2011:- The DPP directed the Gardaí to proceed with the original charges. 19th December, 2011:- The applicant was arrested and charged with offences pursuant to ss. 11 and 18 of the Offences Against the Person Act, 1861. High Court decision 23. The learned High Court judge specifically considered the decision of the DPP not to charge the applicant until after the trial of the four men. It was held:-
In Kennedy v. DPP (unrep., Supreme Court, 7th June,2012) the applicant had been charged on the 22nd October, 2010 with offences of corruption alleged to have been committed on dates in 1992 and 1997. The alleged offences concerned planning decisions which were the subject of investigation by the Tribunal of Inquiry into Certain Planning Matters and Payments. The Director had given directions in the applicant's case in June, 2010. A major part of the justification for the delay was that the prosecution wished to have available to it the evidence of Frank Dunlop, which was not possible until Mr. Dunlop's engagement with the Tribunal had concluded and he himself had been prosecuted. Mr. Dunlop pleaded guilty in his own case in January, 2009 and was sentenced in May, 2009. A majority of the Supreme Court considered that the DPP was entitled to await the conclusion of Mr. Dunlop's trial, on the basis that, if he had been called as a witness against the applicant before his own case had been dealt with, there could have been a perception that his evidence was affected by the desire to gain some benefit for himself. In the instant case, it is easy to understand why Mr.O'Dwyer and Mr.McKeever were charged more or less immediately, when they had made admissions as to their role - there was nothing complex about the nature of the charges against them, given the evidence. The question of whether to charge the applicant, and if so what charges to prefer, was obviously more complicated given that she took no physical role in the incident. In the event, she was charged as a principal. I think that it is implicit in the reasoning of the Director in this case that the prosecution wanted to call the applicant as a witness in the trial of the four men and did not, therefore, want to charge her until that trial was concluded. That means that a decision was made as to which trial took priority. That is understandable, given that Mr. O'Dwyer and Mr. McKeever were the persons who actually carried out the attack. However, the difficulty that presents itself is that the applicant was 15 at the time, while Mr. O'Dwyer and Mr. McKeever were, respectively, 18 and 19 years old. The choice that the Director made at the time therefore involved a conscious decision to delay the prosecution of a young person until the conclusion of proceedings against persons who were, in law, adults.”
It seems to me that the evidence thereafter speaks for itself. There was no real effort to find the applicant, who was living openly in England under her own name and engaging with public authorities on a day-to-day basis. The assertion that, after her marriage in 1995, she used her married name as a device to evade detection is quite rightly disowned by Counsel. The persistent denial of her truthful claim to have had her maiden name marked on her passport is, to my mind, a matter of real concern. The fact that she moved back to Ireland in 2004, worked and paid taxes with the same PPS number as she had had all along is another indication of failure on the part of the Gardai to keep investigative channels open. It must be remembered that this is a case where there was a warrant issued by a court to arrest the applicant in existence since 1989. Cases involving warrants are subject to the particular requirement that the warrants be executed promptly. … In the instant case, the court is dealing, not with a bench warrant issued on foot of failure to appear, where the onus would in the first place be on the applicant to explain such failure, but with a warrant to arrest of which the applicant was never aware. I am satisfied that the lapse of over 20 years amounts to significant, blameworthy delay, which has not been adequately explained and which triggers an inquiry as to whether the applicant's rights have been compromised. While the case might not have warranted "a national manhunt", it certainly required more than waiting for the applicant to fall gratuitously into the laps of the Gardaí. In effect, the latter was the stance adopted. After the initial circulation of the notice, nothing seems to have been done other than the ongoing contact of Mr. O'Carroll with his criminal informants in the Crumlin area. This was, in the circumstances of the case, never likely to bear fruit. I cannot in these proceedings resolve the conflict of evidence between Mr. O'Carroll and Mr. Carolan but it is obvious that contact with other relatives of the applicant such as Mr. Payne would have yielded information as to her whereabouts. There was a further, largely unexplained, delay after the applicant was located in Co. Cavan in early 2010. She was not then charged until November, 2011. This is not a case where new evidence of an independent or compelling nature came to light. The Director argues that the fresh statements of Jessie O'Dwyer and his sister Jennifer provide new information from a prosecution point of view. However, it seems to me that much of what is new in them consists of retrospective speculation and hearsay as to the events of 1988. In any event, there is no explanation why it took so long to forward these statements to the DPP.”
In favour of the applicant I must bear in mind the seriousness of the charges and the concomitant public interest in prosecuting them, along with the finding that the applicant is not prejudiced in any real sense by the unavailability of Mrs. Carolan. It seems to me that the overwhelming consideration is that the special duty to deal with young offenders as closely as possible to the time of their offences has been seriously breached to the extent that what is now proposed is to try a 40- year old in relation to the words and intentions (not actions) of a 15-year old in circumstances where she is not to blame for the delay. Such a trial would, as described by the Supreme Court in B.F. v. DPP, take on a "wholly different character" to any trial that would have been embarked upon when she was at or near the age of 15. Were she to be convicted, the purpose of the sentencing process would also be radically altered. Although many of the protections afforded to young offenders under current legislation did not exist at the time there were certain significant features such as the fact that she could have been imprisoned only in very limited circumstances. Sentencing of a girl of her age would have focussed very largely on the issue of rehabilitation, which is at this stage manifestly irrelevant. Having regard to the importance of the special duty in relation to young persons and the breach of that duty which has been established in this case, I consider the proposed process to be unfair to the point that it should not be permitted to proceed.” 26. The applicant claimed in the High Court that she got her first passport in 2002/2003 and that her maiden name was noted on it at her request. This was persistently denied by the Gardaí. 27. In the affidavit of Detective Superintendent Brian Sutton of the 23rd July, 2012, it is deposed that:-
28. On the evidence before her, the learned trial judge made the following finding:-
30. Gardaí affidavits stating that the applicant’s maiden name did not appear on her passport, when the contrary is true, is a matter of deep concern to the Court. The making of incorrect statements on affidavit by any deponent, but in particular a member of An Garda Síochána, in relation to details contained in a legal document, leading to a suggestion that a person attempted to evade a criminal charge or a prosecution, and thereby contributed to the delay in her prosecution, is unacceptable conduct. It is also of concern that an application of the DPP should be initiated and proceed before the High Court on the basis of this kind of affidavit. Even on the most benign interpretation of events, the affidavits asserting that the applicant’s name did not appear on the passport, could not have been sworn and once sworn maintained if any care had been taken to scrutinise the passport, especially once it became clear that this was likely to become a serious issue. Parties, and in particular members of An Garda Síochána, should appreciate that an affidavit is sworn evidence and care should be taken to ensure it is accurate and not misleading. It should contain evidence of fact, and not assertion or argument, and should be forthright with the Court and acknowledge errors or failure when they occur. Instead of acknowledging the obvious failure of investigation and prosecution here, the affidavit was instead used to make an allegation that the applicant had evaded discovery, for which there was no factual support. Unusually in this case, the applicant was able to produce some evidence supporting her case, but that might not have been the case, and the allegation could have coloured the case where there is an obvious public interest in ensuring the prosecution of serious crime. Notice of Appeal
(ii) In failing to find that the public interest required the prosecution to proceed, notwithstanding the passage of time and findings of blameworthy prosecutorial delay, given in particular the background facts which gave rise to the allegations and charges, namely the assault on Christopher Payne Senior, the detailed admissions made by the [applicant] with respect her role in the criminal activity, and her singular failure to engage with the evidence against her in the criminal proceedings, required of her as part of her judicial review; (iii) While placing great weight upon those authorities recited by her in relation to the duty on prosecuting authorities to process with due efficiency proceedings against young offenders, it is notable that in the consideration of a separate heading of the ‘seriousness of the offences’, there is a diminution in the perceived seriousness due to the youth of the applicant at the time of their commission. This of itself diminishes the main case being made by the appellant which is to say that despite any fault which may lie with the prosecution and the delay in the process of bringing alleged culprits to the court, the facts of this case, being of such gravity should, when set in the balance, require a trial even at such a remove as this; (iv) The learned High Court Judge failed to consider adequately the seriousness of the offences alleged. Despite her stated intention to treat the seriousness of the offences as an important and separate ingredient to be considered in the subsequent balancing exercise, it was diminished or diluted in its weight, by being cast in light of the age of the applicant at the time, prior to being placed in the balance against factors favouring the [applicant]; (v) In making an incorrect statement of the balance to be maintained by rendering of less significance the legitimate community interest in seeking a trial of very serious offences when compared with the youth of the suspect of the time of the offences; (vi) In failing to hold that a sentencing hearing, should such a stage be arrived at, could amply accommodate such submissions as the defence may wish to raise given that if arrested and tried at a time more proximate to the time of the commission of the offences, the applicant might have been sentenced as a minor; (vii) Such further or other ground as may be permitted by the Court.” 32. Counsel on behalf of the DPP made written and oral submissions to the Court. 33. The DPP submitted that a finding of blameworthy delay does not of itself prohibit a trial proceeding. Notwithstanding a finding of blameworthy delay in the present case, the trial of the applicant should proceed. 34. It was submitted that despite any fault which may lie with the prosecution and the delay in the process of bringing an accused person to trial, there may, and should, exist certain categories of offence of such gravity, that when set in the balance required a trial notwithstanding the passage of time. In this case it was submitted the offence is so serious that it must carry greater weight than the prosecutorial delay which has occurred. 35. The DPP submitted that insufficient regard was had by the trial judge to the public interest in the bringing of a serious case of alleged criminality to trial. It was submitted that the DPP has, by the provisions of the Constitution and relevant legislation, an independent role in determining whether a prosecution is to be brought on behalf of the People and the courts should be slow to interfere with such a decision. 36. The DPP submitted that insufficient weight was given by the learned trial judge to the previous admissions of guilt made by the applicant. The DPP submitted that evidence of admissions, such as those made by the applicant, have been found to be a determinative factor in deciding whether or not to prohibit a trial. 37. It was submitted on behalf of the DPP that where, as in this case, the risk of an unfair trial has not been established, the trial should proceed. Notwithstanding, the substantial delay in bringing the proceedings in this particular case, it was submitted that there exists a number of safeguards within the criminal process which would serve to protect the applicant’s rights. 38. The DPP submitted that the age of the applicant at the time of the attack on Mr. Payne does not override the public interest in having all of those responsible for the attack on her father being put on trial for the offence. 39. Finally, the DPP submitted that if the Court were to overturn the decision and order of the High Court judge and permit the trial of the applicant to proceed, and were the sentencing stage to be arrived at, the trial court could, at that stage, take account of any concerns in relation to the age of the applicant at the time the offences were allegedly committed, and the lapse of time between the offence and charging the applicant. It was submitted, however, that in the interests of justice, it is necessary that the applicant be tried for the serious offences with which she is charged. Submissions on behalf of the applicant 41. The applicant submitted that the learned trial judge considered all of the factors relevant to the exercise that she was required to carry out, applied those factors correctly when weighing the competing interests, and ultimately came to the correct conclusion that, in all the circumstances of the case, the applicant’s trial should be prohibited. It was submitted that the learned trial judge very clearly had regard, and factored into the balancing exercise, the seriousness of the charges facing the applicant and the public interest in prosecuting those charges. 42. It was submitted on behalf of the applicant that the claims made by Gardaí that the investigation was active and ongoing in respect of the applicant are not credible and cannot be deduced from a reasonable analysis of the affidavit evidence. The applicant submitted that the investigation in this case into the whereabouts of the applicant was inadequate in that it was “shoddy, lack-lustre and lackadaisical.” Further, even when the applicant’s presence in the jurisdiction became known to the DPP, there then followed a further period of culpable delay. 43. The applicant submitted that the learned trial judge correctly weighed the issues in this case, and correctly assessed the public interest. It was submitted that the public interest in the prosecution of serious crime is not to be divorced from the factual context of the individual case before this Court. 44. The applicant submitted that the culpable delay involved in the prosecution of this offence, and the absence of any determined investigative effort, diminishes the public interest for this offence to be prosecuted further. It was submitted that the public interest in prosecuting the offence which existed at the time would no longer be served by putting the applicant on trial after such a lengthy period of time has elapsed as a result of wholly exceptional and culpable prosecutorial delay. 45. The applicant submitted that, in assessing where the public interest lies in this case, it is relevant to have regard to the fact that all four of the principal participants in this offence were brought to justice some 25 years ago. Further, in this regard it was submitted that the DPP made a conscious decision in 1989 to delay the prosecution of a child, the applicant, until the conclusion of proceedings against persons who were, in law, adults. 46. The applicant submitted that, in accordance with the decided authorities, the seriousness of the charge as a factor has lesser impact where juvenile offenders are concerned. Further, it was submitted that the special duty on authorities to expedite trials in the case of child offenders was breached in this case. 47. Finally, counsel on behalf of the applicant submitted that the exceptional circumstances of this case are such that it would be unfair and unjust to put the applicant on trial. Prosecutorial delay 48. The right to a fair trial, as guaranteed by the Constitution, has been held to encompass a right to a trial with reasonable expedition. In the seminal case of The State (O’Connell) v. Fawsitt [1986] I.R. 362 this Court upheld the finding of the High Court at p.378:-
… In addition, it will be necessary to consider whether an applicant, such as the applicant in the present case, is required to place before the court evidence of any additional distress upon which he seeks to rely.’”
Children Act, 1908 52. In 1988, however, the applicant, as a fifteen year old, would have been subject to its predecessor- the Children Act, 1908. This Act has been described by Professor Dermot Walsh in Juvenile Justice (Thomson Round Hall, 2005) as reflecting a “desire to rehabilitate child and young offenders” and “to accommodate special circumstances of young offenders”. Professor Dermot Walsh also provides a useful overview of the legislation at para. 1-03, where he stated:-
Special duty in relation to child or young offenders 55. The obligation to provide a child or young defendant with a speedy trial was explicitly provided for by this Court in B.F. v. DPP [2001] 1 IR 656, where Geoghegan J. stated at p.666:-
58. The argument that the principles identified by Geoghegan J. in B.F. applied only in respect of sexual offences committed by a child was rejected by Quirke J. in the High Court decision of Jackson and Walsh v. DPP [2004] IEHC 380, where he stated at p.16 that:-
59. Thus, the age of an accused person is another factor which may be put into “the melting pot” when the balancing exercise in relation to prosecutorial delay is being considered. As noted by Thomas O’Malley in The Criminal Process (Roundhall, 2008) at para. 17.57:-
60. The learned trial judge made a finding that “the lapse of over 20 years amounts to significant, blameworthy delay, which has not been adequately explained and which triggers an inquiry as to whether the applicant’s rights have been compromised.” 61. The background to this case has been set at length above. The incident which gave rise to the applicant being charged under ss. 11 and 18 of the Offences Against the Person Act, 1861, occurred on the 13th May, 1988. On the 14th May, 1988, the men involved in the attack on the applicant’s father made admissions of guilt. On the same date, the applicant, then aged 15 years, is said to have made incriminating statements. The following day, the DPP gave directions to charge the four men involved in the assault. 62. It was not until the 25th July, 1989, two days prior to the date on which the four men were sentenced, that the DPP issued directions to charge the applicant and her mother. The applicant and her mother had in fact moved to England at an unknown date during July, 1989, but, however a date after the 3rd July, 1989, on which date the four men entered guilty pleas. The applicant and her mother were in attendance in court on that date in order to provide witness evidence. A warrant for the applicant’s arrest was issued in August of the same year. 63. The applicant moved back to Ireland in 2004 as a married adult with children. She established herself with her family in Co. Cavan. Although at this time the applicant went by her married name of Sharon Cullen, on her return to Ireland she applied for a PPS number for which purpose she provided her maiden name, Payne, and her last address in Ireland, the family home in Crumlin. Further, the applicant received benefit for three years under the name Sharon Payne. The Gardaí were notified of the applicant’s presence in Ireland in January, 2010. The applicant was arrested and charged with the relevant offences on 19th December, 2011. 64. Thus, there was a delay of 23 years and 8 months between the date on which the offence was alleged to have occurred and the date on which the applicant was arrested and charged. This was a very significant blameworthy delay on the part of the State authorities to which the applicant in no way contributed. The applicant, then aged 15, was taken lawfully to England by her mother in 1989. The applicant and her mother were unaware of any intention on the part of the DPP to charge the applicant with the offences. The applicant settled in England and led an open life, fully engaging with authorities. Whilst the applicant did go under the name Sharon Cullen from 1995, from the time of her marriage to Con Cullen, she opened a bank account and paid taxes under Sharon Payne until then. Further, the trial judge found as a fact that the applicant had both her married and maiden name listed on her passport, at her request, when she obtained it in 2002. The applicant returned to this jurisdiction permanently in 2004 with her husband and two children. The applicant received benefit under her maiden name for 3 years in this country. In other words, the applicant led an open life, she did not conceal her identity. 65. The applicant did not evade the State authorities. The delay is a very significant and inexplicable blameworthy delay on the part of the prosecuting authorities. 66. As previously stated, a delay of 23 years and 8 months had elapsed between the date on which the offence was allegedly committed and the date on which the applicant was arrested and charged. In the circumstances, this Court upholds the finding of the trial judge that there was significant and blameworthy delay by the prosecution. 67. As provided for in the case law discussed above, however, the existence of significant culpable prosecutorial delay does not, of itself, automatically prohibit a trial. Rather, the court must engage in a balancing operation, balancing the public interest in prosecuting the crime, as against the interests of the applicant. As per Geoghegan J. in P.M v. DPP [2006] 3 I.R. 174 at p. 177:-
Age of the applicant 70. There is no doubt that this “special duty” owed the applicant to expedite the proceedings was not discharged in this case. The applicant was fifteen years of age when the offences were alleged to have been committed by her. The applicant is now forty one years of age. 71. On the 19th December, 2011, the date on which she was arrested and charged for offences committed on the 13th May, 1988, the applicant was thirty nine years of age. There has been a delay of twenty three years in bringing charges against the applicant. The DPP failed in its special obligation to the applicant, as a 15 year old in respect of whom there were, unknowingly to her, directions given to prosecute. 72. In B.F. this Court held that a delay of 2 years and 9 months amounted to a breach of the special duty owed towards an accused child or young person. A delay of 23 years, in the circumstances of this case, is a breach of the special duty owed to the applicant. However, there are also other factors to be taken into consideration. Sentencing Degree of prejudice
Delay post 2010 77. In July, 2011, the DPP was sent an updated file by the Gardaí. It is stated that this delay of 19 months was in order to review the case against the applicant, to ensure the Gardaí were still in possession of the necessary proofs and to consider whether there was any further evidence available. 78. The applicant was arrested and charged in December, 2011. This amounts to a further delay of nearly two years, 23 months. 79. This delay takes on greater significance when it follows a very substantial delay of twenty-one years in respect of prosecuting the applicant for offences which were, allegedly, committed by a child. Seriousness of the offence 81. It is acknowledged that the nature of a case may be such that notwithstanding the fact that a person was a child at the time of the commission of an alleged offence, he/she 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. Indeed, in circumstances of cases involving very serious charges, the fact that the person was a child at the time of commission of the alleged offence, and as a consequence of delay will be tried as an adult, may not be sufficient to outweigh the public interest in having such a charge proceed to trial. It will depend on all the circumstances of the case. 82. The special duty of the State to expedite the prosecution of offences where the accused is a child or a minor was referred to by Quirke J. in the High Court decision of Jackson and Walsh v. D.P.P. [2004] IEHC 380 where he stated:-
84. The applicant in this case was not convicted of “any further criminal activity”, neither as a child nor as an adult. 85. The seriousness of the offences in question is one factor to be taken into account by the court when conducting the balancing operation. It must be considered in the context of the realities of mounting a prosecution in a complex case. A reasonable amount of time is required to prepare for the prosecution of a serious and/or complex case. However, that does not arise on the facts in this case. Decision 87. Further, it is clear that there has been an undoubted breach of the “special duty” that exists on State authorities to expedite proceedings in relation to a child or young person in this case where there has been a delay of over twenty three years. 88. In addition, there are all the individual circumstances of the present case. The initial decision of the DPP was not to prosecute the applicant until after the four men were prosecuted. The delay between the alleged commission of the offences and the applicant being charged, twenty three years, is a very significant length of delay. Further, there was additional delay after the applicant was located in early 2010. This delay must be viewed in light of the special duty of the State authorities, including the duty of the DPP, to move with expedition after there has already been a lengthy delay in a case. 89. The Court finds that these factors are sufficient, when taken together, to outweigh the factors that the offences were serious and the public interest in having the applicant prosecuted. The length of the highly culpable prosecutorial delay accrued in this case, the disparity between the age of the applicant then and now, taken with the loss of protections that flow from such an elapse of time, are such that this Court finds the existence of wholly exceptional circumstances. 90. For the reasons set out above, this Court would affirm the decision of the High Court, granting a prohibition on the trial of the applicant, and dismiss the appeal.
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