Supreme Court allows appeal, granting injunction to stop prosecution due to excessive state delay in child sex offence case.

Keane C.J.

Murphy J.

Geoghegan J.

108/2000

SUPREME COURT

BETWEEN/

B.F.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Judgment of Mr. Justice Geoghegan delivered the 22nd day of February 2001

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.

THE FACTS

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.

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.

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.

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.

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.

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.

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:

“I say and believe that the delay in seeking the extradition of the applicant and the subsequent delay in the applicant facing a

trial in relation to these charges has been caused by the actions of the respondent, his servants or agents and I further say

and believe that the applicant and the members of his family have co-operated and assisted the relevant authorities in these

matters at all times.”

In paragraph 20 the deponent further avers:

“I say further that the applicant was fourteen and a quarter years of age approximately when these offences were alleged to

have been committed. Since that time he has attended school and college and has made an application to join the Army and

has joined the Army cadets as a basis for this. He has made friends in England. He has in the intervening three years and nine

months matured significantly and has addressed the question of school and his future in a very serious way. I am advised and

believe that to prosecute him at this late stage for offences committed at such an early age would be unfair.”

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.

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.

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.

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.

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.

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.

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

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

later.

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.

THE LAW

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

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...”

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:-

“...that the Constitution guarantees to every citizen that the trial of a person charged with a criminal offence will not be

delayed excessively; or, to express the same proposition in positive terms, that the trial will be heard ‘with reasonable

expedition’...”

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

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.

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.

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:

“In many instances delay or lapse of time between the date of an alleged offence and the date of a proposed trial may have

the consequence of creating a real or probable risk that the accused will be subjected to an unfair trial. This can arise in

either of two ways. A court whose jurisdiction is invoked to prevent such an invasion of constitutional rights might be satisfied,

from an excessive length of time itself, to raise an inference that the risk of an unfair trial has been established as a reality.

More frequently (as arose in The State (O’Connell) v. Fawsitt [1986] I.R. 362) the accused will be in a position to establish on

facts the real risk of a particular prejudice which would render the trial unfair.”

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:

“... I am driven to the further conclusion that, of necessity, instances may occur in which a delay between the date of the

alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity

for a court to protect the constitutional right of the accused by preventing the trial, even where it could not be established

either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability that the accused’s

capacity to defend himself would be impaired. This must lead of course to a conclusion that, on an application to prohibit a

trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude

the issues which have to be determined.”

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.

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 I.R. 25 a decision also of the Supreme Court, Keane J. in his judgment said the following at p. 68:

“Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable

delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an

unfair trial: that, after all, is what is meant by the guarantee of a trial ‘in due course of law’. The delay may be such that,

depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated

that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first enquiry must be as to

what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting

authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in

making it was referable to the accused’s own action.”

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.

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 I.R. 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.

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.