High Court dismisses judicial review against criminal prosecution of an aged-out child alleging prosecutorial delay. The court allows the prosecution to proceed despite the applicant's age change. The court rejects the claim that delay caused prejudice regarding detention order concurrency. The court finds the applicant failed to prove a real possibility of sentencing prejudice. The court dismisses the challenge to the District Court's jurisdiction decision. The court orders adjudicated costs against the applicant for non-disclosure.

APPROVED [2025] IEHC 470

THE HIGH COURT

JUDICIAL REVIEW

2024 232 JR

BETWEEN

K. (AGED OUT CHILD)

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 1 September 2025

INTRODUCTION

1. This judgment is delivered in respect of an application to restrain a criminal prosecution. The criminal prosecution arises out of an alleged assault causing harm. The accused person is the applicant in these judicial review proceedings (“the Applicant”).

2. As of the date of the alleged offences, the Applicant had been a “child” within the meaning of the Children Act 2001. The Applicant had still been a “child” as of both the date upon which he had been charged with the offences and the later NO FURTHER REDACTION REQUIRED date upon which he had been sent forward for trial to the Circuit Court. The Applicant subsequently “aged out”, i.e. reached the age of eighteen years, prior to the hearing and determination of the criminal prosecution. The criminal prosecution has been stayed pending the determination of these judicial review proceedings.

3. The Applicant contends that there has been culpable prosecutorial delay. It is further contended that had the criminal investigation and prosecution been conducted expeditiously, then the Applicant would have been entitled to have the charges against him heard and determined in accordance with the procedures prescribed under the Children Act 2001. The principal prejudice asserted by the Applicant is the supposed loss of the opportunity of having any detention order, which might have been imposed upon him in respect of the alleged assault, “run in” with existing detention orders which he had been serving at the time of the alleged assault. Put otherwise, the Applicant suggests that any detention order imposed would have run concurrently with the existing detention orders with the result that he would serve no additional time in custody.

4. The Applicant also seeks to quash the decision of the District Court to send him forward for trial to the Circuit Court. In brief, it is argued that the District Court, in deciding whether to retain jurisdiction over the criminal prosecution pursuant to section 75 of the Children Act 2001, erred in the approach that it took to the alleged prosecutorial delay.

PROCEDURAL HISTORY

5. These judicial review proceedings were instituted on 16 February 2024. The High Court made an order on 27 February 2024 allowing the transcript of the hearing before the District Court to be taken up. Thereafter, leave to apply for judicial review was granted, following an inter partes hearing, on 2 July 2024.

6. As originally pleaded, the proceedings sought to challenge the constitutional validity of certain aspects of the Children Act 2001 in relation to reporting restrictions. This constitutional challenge has been overtaken by events in that the Supreme Court has since confirmed that in circumstances where an accused person is a “child” as of the date criminal proceedings are commenced, the reporting restrictions under section 93 of the Children Act 2001 continue to apply beyond the conclusion of the criminal proceedings (Director of Public Prosecutions v. P.B. [2025] IESC 12). The Applicant has withdrawn the constitutional challenge and discontinued the proceedings as against Ireland and the Attorney General.

7. Separately, the non-constitutional grounds of challenge have narrowed following the judgment of the Supreme Court in Doe v. Director of Public Prosecutions [2025] IESC 17.

8. These judicial review proceedings came on for hearing before me on 1 July 2025. At the conclusion of the hearing, the parties were given liberty to file supplemental written legal submissions addressing the following issue: the sentencing principles which would have pertained had the Applicant been convicted and sentenced while still a “child”. This issue assumed a greater significance at the hearing than had been apparent from the first set of written legal submissions and hence the need for supplemental submissions. The supplemental submissions were duly delivered and counsel made very short oral submissions on 22 July 2025. Judgment was reserved to today’s date.

APPLICABLE LEGAL PRINCIPLES

9. The Supreme Court has held that, in the case of a criminal offence alleged to have been committed by a child or young person, there is a special duty on the State authorities, over and above the normal duty of expedition, to ensure a speedy trial. See B.F. v. Director of Public Prosecutions [2001] IESC 18, [2001] 1 IR 656 and Donoghue v. Director of Public Prosecutions [2014] IESC 56, [2014] 2 IR 762.

10. The Supreme Court in Donoghue emphasised that blameworthy prosecutorial delay alone will not suffice to prohibit a trial. Rather, the court must conduct a balancing exercise to establish if there is something additional to the delay itself to outweigh the public interest in the prosecution of serious offences. See paragraph 52 of the reported judgment as follows:

“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 18th birthday.

Therefore, in any given case a balancing exercise has to [be]

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.”

11. The principles governing the assessment of prosecutorial delay have been more recently considered by the Supreme Court in Doe v. Director of Public Prosecutions [2025] IESC 17. O’Malley J., writing for the court, emphasised that the prohibition of a criminal prosecution should be seen as an exceptional measure in circumstances where a serious offence is alleged. See paragraphs 125 to 128 of the judgment as follows:

“It seems clear that, rather than proposing any categorisation

of seriousness, what the Court in Donoghue envisaged was a

case-specific, fact-based assessment which takes into

account the alleged harm done by the offence, including

harm to any victim, and the presence of any aggravating

factors. The outcome of such an assessment will, in turn, feed

into the consideration of the question whether the public

interest in continuing the prosecution outweighs the damage

done to the interests of the accused.

In this context, the question is not necessarily answered by

reference to the likely severity or lenience of any sentence

that might be imposed in the particular case. The public

interest in the proper administration of justice does not

depend on the outcome of an individual case so much as on

the proper functioning of the process. The fact that a trial

ends with the imposition of a non-custodial sentence does

not, of itself, imply that the offence was not serious.

The interests of victims, in the sense of their own personal

entitlement to vindication of their rights, will be an important

element in the consideration of the public interest in

continuing with the prosecution. Where an offence has

caused appreciable harm to an identifiable person or persons,

the public at large has an interest in the pursuit of justice

through the criminal justice system. This is in part because

of the deterrent effects of prosecutions (although the value of

deterrence would not justify proceeding with a prosecution

where the circumstances are such that it would be unfair).

These considerations will generally favour the prosecution

of a serious crime. In such a case prohibition should be seen

as an exceptional measure, to be granted only if the delay has

caused serious prejudice beyond the norm. Where

prohibition is not appropriate, it seems to me that a court

should consider the extent to which it can direct other

measures, that could remedy the effects of a breach of

rights.”

PARTICULARS OF THE ALLEGED OFFENCES

12. The summary of the particulars of the alleged offences which follows below is predicated upon the medical reports and witness statements which have been exhibited in these judicial review proceedings. It should be emphasised that this summary does not entail the making of any findings of fact by the High Court and that the Applicant enjoys a presumption of innocence.

13. Having regard to the fact that there is a criminal prosecution pending, certain specific details have been deliberately excluded from the summary. Personal details, such as the Applicant’s precise date of birth, have been omitted.

14. The Applicant is charged with an offence of assault causing harm contrary to section 3 of the Non-Fatal Offences against the Person Act 1997; and with an offence of producing, in the course of a dispute or fight, in a manner likely unlawfully to intimidate another person, an article capable of inflicting serious injury, contrary to section 11 of the Firearms and Offensive Weapons Act 1990.

15. The alleged incident giving rise to these charges may be summarised as follows. The Applicant had been serving detention orders at the children detention school known as “Oberstown Children Detention Campus”. On the day in question, the Applicant had been requested to return to a particular unit but failed to do so. It is alleged that the Applicant threatened members of staff, saying as follows: “I will bate the fucking head off you’s”. It is alleged that the Applicant ran away from the staff members and broke a branch off a tree which he then held in a threatening manner. It is alleged that the Applicant proceeded to violently assault a named social care worker using both the branch of the tree and his fists. The Applicant was ultimately restrained by the use of handcuffs. It is further alleged that the Applicant shouted to another child detainee as follows: “you do the fucking same, they have no staff”.

16. The victim of the alleged assault attended at a named hospital. The medical reports indicate that the victim’s nose had been fractured. The victim says that he has been traumatised by the incident and that he had been unable to participate in a [named sporting event] because of the injuries received.

ASSESSMENT OF DELAY

17. The first question to be addressed by this court is whether the pace of the criminal investigation between the date of the alleged incident (7 September 2022), and the date upon which the Applicant reached his eighteenth birthday (January 2024), entailed culpable or blameworthy prosecutorial delay.

18. Before turning to consider the chronology, it is salutary to make the following general observations. It is not the function of the High Court to carry out a detailed audit of the conduct of the prosecuting authorities by examining the process at a granular level with a view to deciding, retrospectively, whether the time expended at each point in the process was appropriate. Rather, the purpose of the exercise is to determine, by evaluating the progress of the criminal investigation in the round, whether the threshold of reasonable expedition has been met. This is case-specific and will depend on factors such as, for example, the nature of the offence alleged; whether the accused has made admissions; the number of witnesses to be interviewed; the vulnerability of the injured party; and the volume of “real” evidence, e.g. CCTV footage, to be collated and examined. The carrying out of any criminal investigation will take time: the resources of An Garda Síochána are finite. While the importance of ensuring a speedy trial in the case of alleged youth offenders is well established, there is no obligation on the prosecuting authorities to unrealistically prioritise cases involving minors (see the judgment of the High Court (Kearns P.) in D. v. Director of Public Prosecutions [2015] IEHC 405 (at page 19)).

19. The nature of the obligation upon the prosecuting authorities has been described as follows by the Court of Appeal in F. v. Director of Public Prosecutions [2022] IECA 85 (at paragraph 22):

“What one would like to see, and what seems to me to be

absent in this case, is an awareness on the part of the Gardaí

that their suspect was a juvenile due to attain majority at a

particular stage, and that it was desirable, if practicable, to

conclude the investigation before the suspect turned eighteen

years of age. In saying that, I recognise and wish to

acknowledge that there will be many cases where that will

not be practicable. Further investigations may be complex

or sensitive. As a force, An Garda Síochána, and no doubt,

individual Gardaí, have very significant caseloads and it

would be unrealistic and inappropriate to approach matters

as if Gardaí were in a position to deal with a particular

investigation on an exclusive basis. Other cases being

worked on may be of greater importance and will naturally

demand higher priority. However, what concerns me in the

present case is that I do not observe an awareness on the part

of Gardaí that they were dealing with a suspect who was a

juvenile, and linked to that awareness, a desire to deal with

matters with the level of expedition required so as to make

having the matter dealt with before the suspect attained his

majority a realistic prospect.”

20. It should be explained that there is a further procedural step which is unique to juvenile offenders, and the need to complete this step adds to the lapse of time between the date of an alleged offence and the date upon which charges are preferred. Specifically, juvenile offenders must be considered for admission to the Garda Diversion Programme. This is provided for under section 18 of the Children Act 2001 as follows:

“Unless the interests of society otherwise require and subject

to this Part, any child who—

(a) has committed an offence, or

(b) has behaved anti-socially,

and who accepts responsibility for his or her criminal or anti-

social behaviour shall be considered for admission to a

diversion programme (in this Part referred to as the

Programme) having the objective set out in section 19.”

21. Relevantly, one of the criteria under section 18 is that the juvenile offender accepts responsibility for his or her criminal or anti-social behaviour. The making of a referral to the Garda Diversion Programme must normally await the completion of the investigation file. This is because it is only when the full extent of the alleged offence is known that an informed decision can be taken as to whether or not the juvenile offender has accepted responsibility. The making and completion of a referral to the Garda Diversion Programme will take some time, and this has to be taken into account by a court in assessing whether there has been blameworthy or culpable delay.

22. Similarly, the requirement to submit a file for directions to the Office of the Director of Public Prosecutions will also take some time, and that Office must be allowed a reasonable period within which to issue its directions.

23. The Court of Appeal in F. v. Director of Public Prosecutions has suggested (at paragraph 21) that the progress of the criminal investigation and prosecution should be looked at in the round:

“[…] For my part, I am more inclined to step back and view

the situation in the round. I say this because it seems to me

that in many cases, there will be a degree of swings and

roundabouts, in the sense that if particular tasks are carried

out with considerable expedition, this may allow the pace to

drop at other stages of an investigation. Conversely, there

may be cases where, if it is established that some aspects of

the investigation were not conducted with the expedition that

would be expected, an obligation arises to pick up the pace

and make up for time lost at other stages.”

24. The assessment of whether or not there has been blameworthy prosecutorial delay is fact-specific and has to be carried out on a case-by-case basis. Nevertheless, earlier case law provides a useful reference point in assessing delay. There is now a body of case law addressing prosecutorial delay and a consensus is emerging that—in the context of an uncomplicated investigation— an explanation may be called for where the time expended on a straightforward offence has gone beyond eighteen months.

Chronology of the criminal investigation and prosecution

25. The following are the key dates in the chronology:

[…] January 2006 Applicant’s date of birth

7 September 2022 Date of the alleged assault

28 September 2022 CCTV footage requested from Oberstown Campus

14 October 2022 Substantive statement taken from alleged victim

23 November 2022 Arrest warrant applied for

19 December 2022 CCTV footage secured

11 January 2023 Applicant arrested and interviewed

26 March 2023 File to Garda Youth Diversion Programme

14 July 2023 Applicant deemed unsuitable for programme

2 August 2023 File to Office of Director of Public Prosecutions

10 August 2023 Direction to charge

23 October 2023 Charged before the District Court (Children Court)

28 November 2023 Section 75 hearing

[…] January 2024 Applicant turns eighteen years of age

9 January 2024 Return for trial

(3 February 2024 Conviction for unauthorised taking of vehicle)

16 February 2024 Judicial review proceedings instituted

1 July 2025 Hearing of judicial review proceedings

22 July 2025 Supplemental submissions

26. As appears from the foregoing chronology, the initial stages of the criminal investigation were carried out with reasonable expedition. A detailed statement had been taken from the victim of the alleged assault within a number of weeks of the incident. This timescale was reasonable having regard to the fact that the victim said he had been traumatised by the incident: it was appropriate to allow him a few weeks to recuperate before subjecting him to an interview. The time expended in obtaining the CCTV footage was also reasonable. It takes time to collate CCTV footage.

27. The fact that the Applicant had been serving detention orders created a procedural complexity in that it made it necessary to arrest him in order to carry out an interview. The arrest and interview took place approximately three months after the date of the incident. This period was reasonable having regard to the fact that it had been necessary to obtain the CCTV footage first to allow same to be shown to the Applicant at the interview.

28. The next step in the process involved the referral to, and decision by, the Garda Diversion Programme. Counsel on behalf of the Applicant is critical of the fact that this step was not completed until 14 July 2023. The point is made that in December 2021 the Applicant had been refused admission to the Programme, in the context of a different offence, by reason of what was described as his repeated offending. The implication being that the subsequent referral and decision in respect of the alleged assault should have been simple and straightforward.

29. The lapse of approximately five months during which the referral was prepared and decided upon did not result in an unreasonable delay. It is mandatory to make a referral in all cases and this step cannot be treated as perfunctory nor can it be assumed that an earlier decision to refuse admission to the Garda Diversion Programme will be determinative of a subsequent referral. Moreover, even if the time spent on this step were to be characterised as unreasonable, any supposed delay is more than compensated for by the promptness with which the next stage was completed. The next step consisted of the obtaining of directions from the Office of the Director of Public Prosecutions. The file was submitted to the DPP’s Office within two to three weeks of the decision not to admit the Applicant to the Garda Diversion Programme and directions issued a week later.

30. In summary, two crucial stages of the process, i.e. the referral to the Garda Diversion Programme, and the subsequent referral and decision by the DPP’s Office, were completed within an overall period of seven months and this is reasonable.

31. Thereafter, the Applicant was charged before the District Court on 23 October 2023. The explanation offered for the fact that this step took several weeks is that it had been necessary to apply to arrest the Applicant. The section 75 hearing was expedited and took place on 28 November 2023. The Applicant “aged out” on […] January 2024.

32. As explained by the Court of Appeal in F. v. Director of Public Prosecutions, the progress of the criminal investigation and prosecution should be looked at in the round. Here, the Applicant was charged within thirteen months of the date of the alleged offences and had the benefit of a section 75 hearing one month thereafter. The period of the alleged delay is less than that which has been held to be unreasonable in other cases. Whereas each case must, of course, be determined by reference to its own specific facts, an analysis of the case law does suggest a possible benchmark of at least eighteen months’ delay. There are very few cases where shorter periods have been held to involve culpable delay. One of the closest comparators in terms of time is Donoghue itself. There, a period of one year and four and a half months approximately had elapsed between the date of the alleged offence and the date of charge. This delay was held to be unreasonable in circumstances where the child had made an admission from day one. The circumstances of the present case are distinguishable: no admission has been made. The Applicant exercised his right to silence when interviewed by An Garda Síochána, replying “no comment” to all of the questions posed to him. The Applicant confirmed to the District Court that he did not wish to enter a guilty plea.

33. It is also significant that the criminal prosecution had advanced to the stage of a section 75 hearing prior to the Applicant “ageing out”. The Applicant thus had the benefit of one of the most important of the protections under the Children Act 2001. Had the District Court been satisfied that the alleged offences constituted minor offences fit to be tried summarily, then the criminal prosecution could have been determined prior to the Applicant reaching the age of eighteen years. As of the date of the section 75 hearing, there were approximately five to six weeks remaining before the Applicant “aged out”. It would have been possible to have the matter listed for hearing before the District Court during this period.

34. In the event, however, the District Court refused jurisdiction and sent the Applicant forward for trial to the Circuit Court. The fact that there was insufficient “headroom” to accommodate not only a section 75 hearing, but also a contested trial before the Circuit Court, does not indicate that the criminal prosecution had not been progressed with the requisite expedition. The Applicant had been aged sixteen years and almost nine months as of the date of the alleged assault. Having regard to the pressure of business before the Circuit Court, a period of fifteen to sixteen months will often be an insufficient period of time within which to complete a criminal investigation and to conduct a trial before the Circuit Court.

35. In conclusion, having regard to the foregoing chronology, and considering the lapse of time in the round, there has been no culpable prosecutorial delay.

36. Having regard to this court’s finding that there has been no culpable prosecutorial delay, it is not necessary, strictly speaking, to address the question of prejudice nor to weigh the balance of justice. For the sake of completeness, however, and to ensure that all issues have been decided at the level of the High Court lest there be an appeal, these issues are addressed below.

THE ASSERTED PREJUDICE / BALANCE OF JUSTICE

37. The principal prejudice asserted on behalf of the Applicant is the supposed loss of the opportunity to have the fact that he was already serving detention orders taken into account in sentencing, i.e. in the event that he were to be convicted of the alleged offences. To assist the reader in understanding this assertion, it is necessary to say something about the Applicant’s history.

38. The Applicant had been detained at the children detention school at the Oberstown Campus on an almost continuous basis during the period December 2020 to December 2023. While the Applicant had been serving existing detention orders, additional detention orders were imposed upon him from time to time in relation to other offences. In a minority of instances, the judge imposing the subsequent detention order had directed that the period of detention be backdated, i.e. to be treated as having commenced upon a date prior to the date upon which the subsequent detention order was imposed. This had the practical effect that the Applicant was able to set-off time already served in relation to earlier detention orders against part or all of these subsequent detention orders. In other instances, the subsequent detention orders ran concurrently with the earlier detention orders. In yet other instances, the subsequent detention orders were only to commence once the earlier detention orders had been completed, i.e. the period of detention was to be consecutive not concurrent.

39. The Applicant’s argument is that had the criminal prosecution in relation to the alleged assault been heard and determined while he was still a “child”, and while he was still serving other detention orders, then the sentencing judge would have had to be informed of the fact that he was already in detention pursuant to earlier detention orders. The sentencing judge would have been obliged to take this factor into account. It is further submitted that any detention order imposed in respect of the assault might have been backdated or at least have been expressed to run concurrently with the (then) existing detention orders.

40. For the reasons which follow, the supposed loss of opportunity does not constitute a prejudice capable of outweighing the public interest in the prosecution of the serious offences alleged against the Applicant.

41. First, in the event of a conviction, it is almost inevitable that a detention order would have been imposed with a direction that same was to be served consecutively, i.e. to commence after the completion of the existing detention orders. There is a vital public interest in maintaining discipline and control in children detention schools and in ensuring the safety of staff members. The assault of a staff member involving the use of an (improvised) weapon and causing harm to that individual is a grave matter. The allegation that the Applicant sought to incite another child detainee to engage in similar behaviour is a significant aggravating factor. It is essential to the proper maintenance of discipline and control that there be an effective deterrent against such offences. The prospect of a child detainee, who has been found after trial to have committed such a serious offence, being allowed credit for time already served pursuant to earlier, unrelated detention orders is remote. It would mean that the child detainee incurred no additional period of detention in respect of a serious assault against a member of staff. There would be no effective deterrent against carrying out such offences and this could lead to a breakdown in discipline and order at the Oberstown Campus.

42. The assessment of whether culpable prosecutorial delay has caused prejudice to a juvenile offender almost always entails an element of speculation. Whereas it may not be necessary to establish prejudice on the balance of probabilities, there must at least be a “real possibility” that the asserted prejudice arises (F. v. Director of Public Prosecutions [2022] IECA 85). Here, the possibility of the Applicant having been allowed to serve any further detention order concurrently is too remote to justify the prohibition of the criminal prosecution.

43. Second, it remains open to the Applicant to invite a sentencing judge to have regard to time served. The gravamen of the Applicant’s argument is that a sentencing judge, in fixing the appropriate sentence for the offences then before the court, is entitled to have regard to the fact that the convicted person has served or is serving time in respect of other, unrelated offences. It is said that this might result in a direction that any period of detention, which might be imposed in respect of the offences then before the court, should run concurrently with the existing detention orders. It is further said that the sentencing judge might even direct that the period of detention should be backdated to the commencement of the existing detention orders.

44. In response to a direct question from the bench, counsel for the Applicant confirmed that, on his side’s argument, the discretion to give directions as to the date upon which a subsequent detention order is to begin to run derives from general sentencing principles, rather than having a specific statutory basis. Presumably, the discretion is intended to reflect the “totality principle” of sentencing, i.e. the principle that that the aggregate sentence is proportionate to the totality of the offending. For an authoritative explanation of the “totality principle”, see T. O’Malley, Sentencing A Modern Introduction (Clarus Press, 2025) (at §5-175 to §5-179).

45. There does not appear to be any sensible reason as to why a convicted person must necessarily be in custody as of the date of the subsequent sentencing hearing in order to avail of the totality principle. To take a practical example: suppose an individual committed a series of related offences as part of a single transaction, e.g. a person breaking into a house might have committed the offences of burglary, robbery and assault causing harm. If all the offences were tried together, then the sentencing judge would seek to ensure that the aggregate sentence is proportionate to the totality of the offending. The totality principle may be achieved by making one of the sentences concurrent with another, rather than having them all consecutive (O’Malley, §5-179). Suppose next that, for some reason, one or more of the related offences was tried separately at a later date. In fixing the appropriate sentence for the subsequent conviction, the second sentencing judge would similarly be required to have regard to the totality principle. This would be so irrespective of whether the individual remained in custody or whether, alternatively, the earlier sentence of imprisonment had been completed. The totality principle is intended to ensure that sentencing is proportionate to the totality of the offending, and the achievement of this objective cannot turn on the happenstance of whether the convicted person is still in custody at the time of the subsequent sentencing.

46. The same logic pertains to the present case. If there are, indeed, extenuating circumstances which would have justified relieving the Applicant of any additional period of detention in respect of the alleged assault had he been sentenced while still detained at the Oberstown Campus, then these circumstances would equally have to be considered by any judge sentencing him now as an “aged out” child. The fact that the Applicant has since been released from the Oberstown Campus does not render the extenuating circumstances irrelevant. It follows, therefore, that the Applicant has not been prejudiced by any delay in the prosecution of the alleged assault. Certainly, the delay has not caused “serious prejudice beyond the norm” such as would justify the “exceptional measure” of prohibiting the criminal prosecution of the serious offences alleged against the Applicant.

47. For completeness, it should be recorded that the Applicant, in his supplemental written legal submissions, makes an argument to the effect that had he been convicted, and a further detention order imposed, he would have completed a large portion of same at the Oberstown Children Detention Campus, with the additional benefit of the services available to juvenile offenders. With respect, this argument tends to miss the point that the relevant statutory provisions are intended for the benefit of a person who is detained while still a child; they were never intended to extend to an adult who has been convicted of an offence committed while a child. The Applicant has not suffered any “loss” of statutory rights which he would otherwise have had. This point is elaborated upon below.

48. The purpose of, and practicalities of, detaining a child are very different from those entailed in imprisoning an adult. This is reflected throughout the Children Act 2001. The Act recognises that the detention of a child has the potential to adversely affect that child’s education and their relationship with their parents and other family members. To this end, it is expressly provided, under section 96(2), that any penalty imposed on a child for an offence should cause as little interference as possible with the child’s legitimate activities and pursuits;

should take the form most likely to maintain and promote the development of the child; and should take the least restrictive form that is appropriate in the circumstances. A period of detention should be imposed only as a measure of last resort. It is not permissible to commit a child to prison (section 156). This reflects the concern that an adult prison would be a hostile environment for a child and to commit them to an adult prison might well undermine their rehabilitation and education.

49. Crucially, these legislative provisions reflect the peculiar circumstances of a juvenile offender who is to be sentenced and detained while still a child under the age of eighteen years. By definition, the offence which has resulted in the detention order is an offence which will have been committed by a child, with the reduced moral culpability which that may entail. This reduced moral culpability is not, however, the focus of these specific legislative provisions. Rather, they are directed to the exigencies of detaining a child in custody. The focus is on educational needs and family relationships. There is no necessity to extend these legislative provisions to an adult who is being sentenced in respect of offences which he or she committed while under the age of eighteen years. The legislative provisions are unique to a child detainee; they are not appropriate for an adult prisoner.

50. Finally, it should be reiterated that the Applicant continues to enjoy the presumption of innocence in respect of the alleged offences. Nothing in the foregoing discussion should be misinterpreted as implying otherwise. The discussion has, of necessity, had to consider what sentencing principles would have pertained on the hypotheses that the Applicant were to be convicted. This is because the prejudice asserted, i.e. in terms of sentencing, would only ever arise in the contingency of a conviction. The discussion is hypothetical and does not in any sense pre-empt the outcome of the criminal prosecution pending before the Circuit Court.

CHALLENGE TO OUTCOME OF SECTION 75 HEARING

51. The Applicant also seeks to quash the decision of the District Court to send him forward for trial to the Circuit Court. In brief, it is argued that the District Court erred in the approach it took to prosecutorial delay in deciding whether to retain jurisdiction over the criminal prosecution.

Overview

52. Section 75 of the Children Act 2001 provides, in relevant part, as follows:

“(1) Subject to subsection (3), the Court may deal summarily

with a child charged with any indictable offence, other than

an offence which is required to be tried by the Central

Criminal Court or manslaughter, unless the Court is of

opinion that the offence does not constitute a minor offence

fit to be tried summarily or, where the child wishes to plead

guilty, to be dealt with summarily.

(2) In deciding whether to try or deal with a child summarily for an indictable offence, the Court shall also take account of—

(a) the age and level of maturity of the child concerned,

and

(b) any other facts that it considers relevant.

(3) The Court shall not deal summarily with an indictable

offence where the child, on being informed by the Court of

his or her right to be tried by a jury, does not consent to the

case being so dealt with. […]”

53. The distinctive nature of the procedure under section 75 of the Children Act 2001 has been explained as follows by the Supreme Court in Doe v. Director of Public Prosecutions [2025] IESC 17 (at paragraphs 113 to 115):

“The distinctive nature of a decision under s.75 of the

Children Act 2001 is clear. It applies to nearly all indictable

offences (other than manslaughter and those offences such as

rape and murder that must be sent to the Central Criminal

Court) and does not require the consent of the Director. It

remains constitutionally necessary for the District Judge to

determine whether or not the facts of the case disclose a

minor offence, but in that assessment the judge will have in

mind the sentence that would be appropriate for a child, and

the range of sentencing options available under the Children

Act. It is true that the harm done by an offence will not be

altered by the age of the perpetrator but, for the reasons

outlined above, the culpability will be reduced where the

offence is committed by a child. The appropriate sentence is

therefore likely to be less than that which might be imposed

in the case of an adult offender.

There is no appeal against the decision of the District Judge

to accept or refuse jurisdiction. This can be explained fairly

easily – the decision can be described as a preliminary view

based on outline information. The judge is obliged to conduct

the assessment properly, and explain the decision, but does

not have to be ‘right’ in the sense of correctly predicting the final sentence that will be imposed in the event of a conviction.

It is essential to stress that where the decision is to send the

matter forward to the Circuit Court, the assessment of gravity

and appropriate sentence carried out in the District Court in

no way dictates the outcome of the very different assessment

to be carried out in the Circuit Court. If the person is

convicted or pleads guilty, the Circuit Court judge is obliged

to pass sentence in accordance with the fundamental

principle applicable to sentencing – the sentence must be

proportionate to the offence and to the circumstances of the

offender. At that stage, the court will have considerably more

information than was outlined to the District Court, in

relation to the gravity of the offence and also the culpability

and personal circumstances of the accused.”

54. The Supreme Court emphasised the centrality of the age of the juvenile offender in sentencing as follows (at paragraph 135):

“As far as the sentencing provisions in the Act are concerned,

I would emphasise that the age of the person at the time of

the offence is not simply a relevant factor but is, where the

offence was committed by a child, a central feature in the

assessment of culpability. The gravity of the offence and the

culpability of the accused are the starting points in the

sentencing decision, and neither will have changed with the

lapse of time from the date of the offence. On the other hand,

the personal circumstances of the accused, and their insight

into offending, may well have changed as they have grown

older. […]”.

The approach of the District Court

55. The parties made submissions to the District Court in relation to section 75 of the Children Act 2001 at a hearing on 28 November 2023. The transcript of the hearing has been exhibited. The District Court made two principal findings as follows.

56. First, the District Court rejected an argument that it should address the question of prosecutorial delay as a preliminary issue, i.e. prior to embarking upon a hearing under section 75. The District Court held that jurisdiction had to be established first and that this required a determination on whether the offences charged were minor offences fit to be tried summarily.

57. Second, the District Court determined that the offences were not minor offences fit to be tried summarily and accordingly refused jurisdiction. In particular, the District Court was not satisfied that the “range of sentencing” that is open to that court would necessarily be sufficient to deal with the offences. The District Court made express reference to the injuries alleged to have been sustained by the victim of the alleged assault (including a broken nose and abrasions). The District Court stated that the allegation that the assault had occurred in a prison (recte, children detention school) brought a “considerably higher degree of seriousness” when combined with the injuries alleged to have been received. As to the age and level of maturity of the Applicant, the District Court noted that no indication had been given other than the Applicant’s chronological age.

58. As to the question of prosecutorial delay, the District Court was not satisfied that that delay was something that ought to be considered in the context of deciding whether the offences were minor offences fit to be tried summarily.

Discussion of grounds of challenge

59. The first ground of challenge advanced is that the District Court was required, prior to embarking upon a section 75 hearing, to adjudicate upon the alleged culpable prosecutorial delay and to determine whether or not to dismiss the charges. It is pleaded that the District Court erred in law in failing to do so.

60. With respect, this ground overlooks the constitutional limitation on the District Court’s jurisdiction. The District Court only has jurisdiction to try offences that are minor and fit to be tried summarily. The nature of this constitutional limitation has recently been addressed in detail by the Supreme Court in Corcoran v. Director of Public Prosecutions [2024] IESC 52, [2024] 2 ILRM 421. Charleton J., writing for the court, emphasised that for the District Court to have jurisdiction, there must be an enquiry into jurisdiction: to exercise jurisdiction, that jurisdiction must be established. The District Court must be of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily. The District Court decides if the offence is minor based on the gravity of the circumstances and the consequent potential penalty for those circumstances as outlined.

61. This theme is echoed in Doe v. Director of Public Prosecutions [2025] IESC 17 (at paragraphs 109 to 111):

“[…] What the Court is concerned with in this case, however,

is the process that takes place when the charge is one of the

very large category of cases that may be tried either

summarily in the District Court or on indictment in the

Circuit Court, with a maximum penalty that will depend on

the mode of trial. Both sexual assault and false imprisonment

fall into this category.

Where the legislature makes provision of this sort in relation

to an offence, it clearly envisages that the particular offence

can be committed in varying circumstances, with varying

degrees of gravity and culpability. Any particular instance

may amount only to a minor offence, triable in the District

Court, or it may be a more serious matter that must be sent

for trial on indictment. The effect of the constitutional

provision is that the District Court cannot accept jurisdiction

unless satisfied that, on the facts of the case as made known

to the judge, the case can appropriately be considered to be

minor.

[…] This determination must be made before embarking on

a trial, but an initial decision to accept jurisdiction can be

altered if the emergence of further information in the hearing

causes the judge to change their mind.”

62. The Supreme Court explained (at paragraph 131) that the primary consideration is whether the sentencing options available to the District Court are sufficient:

“[…] the question for the District Judge is whether, on the

preliminary assessment of the facts of the case, the

sentencing options available to the District Court are

sufficient. This question is answered on the basis of an

outline of the facts, without necessarily knowing whether the

accused will plead guilty or not, and not after the kind of

exhaustive analysis of evidence that would be required to

‘exclude’ the possibility of a particular form of sentence.”

63. Applying these principles to the circumstances of the present case, the District Court was correct to address the question of whether or not the alleged offences are minor offences fit to be tried summarily prior to embarking upon any consideration of the alleged culpable prosecutorial delay. The District Court must be satisfied that it has jurisdiction before making any substantive order in the case. Indeed, the judgment in Corcoran suggests that jurisdiction must be established even before embarking on case management such as the assignment of a hearing date.

64. By contrast, the logical terminus of the Applicant’s argument is that the District Court is entitled to dismiss proceedings in respect of which it does not have subject-matter jurisdiction because the offence is not a minor offence fit to be tried summarily. With respect, this argument cannot be reconciled with the case law discussed above. The District Court cannot dismiss proceedings which it would not have had jurisdiction to hear and determine on the merits. To do so would involve the District Court purporting to make dispositive orders in respect of proceedings which it has no jurisdiction to entertain.

65. More generally, the assessment of whether there has been culpable prosecutorial delay is quintessentially a matter for the court of trial or, in limited circumstances, the court of judicial review. The District Court would only have become the court of trial in the event that it had first determined that the alleged offences were minor offences fit to be tried summarily. Jurisdiction would have to be established—with the District Court assuming the mantle of the court of trial—before the District Court could begin to consider the question of delay. On the facts, the District Court refused jurisdiction. In the circumstances, the Circuit Court is the court of trial.

66. The second ground of challenge advanced is that the District Court—in assessing whether or not the alleged offences constituted minor offences fit to be tried summarily—erred in failing to consider the alleged culpable prosecutorial delay. This second ground differs from the first in that it posits that delay be considered as part of the overall assessment under section 75, rather than as a preliminary issue to be determined in advance.

67. The difficulty with this ground is that it does not reflect the argument actually made before the District Court. It was never suggested to the District Court that culpable prosecutorial delay is, in and of itself, a factor which might be relevant to the assessment of whether the “sentencing options” available to the District Court are sufficient. It was not suggested, for example, that a sentencing court would be entitled to mark its disapproval of the delay by reducing the penalty which would otherwise have been imposed. Still less was it suggested that the possibility of such a reduction meant that any detention order which might be imposed upon the Applicant would be for a period of less than twelve months, i.e. within the range of the District Court’s sentencing power.

68. The argument actually made to the District Court involved allegations of general prejudice caused by delay and was not directed to the specific question which arises under section 75, namely, whether or not the offence constitutes a minor offence fit to be tried summarily. The thrust of the submission had been that it would be “fairer” to the Applicant were the criminal prosecution to be dealt with before the District Court. This is not the legal threshold to be met under section 75 of the Children Act 2001.

69. Save in exceptional circumstances, it is not open to a party to raise, for the first time in judicial review proceedings before the High Court, an argument which could have been but was not advanced before the decision-maker under review. The omission to raise in front of the District Court the argument now sought to be made had the consequence that the District Court was not afforded an opportunity to address the argument nor to consider its potential application to the facts of the case before it. To entertain the argument in these judicial review proceedings would necessitate the High Court having to determine ab initio issues which are matters for the District Court in the first instance. This would not be appropriate. The Applicant was afforded an opportunity to make detailed submissions to the District Court, through his legal representatives, on the question of whether that court should retain jurisdiction over his criminal prosecution. As is apparent from the transcript, those submissions were carefully considered by the District Court. On the basis of those submissions, the District Court made a decision of a type which has been characterised by the Supreme Court as a “preliminary view based on outline information” and one which in no way dictates the outcome of the very different assessment to be carried out in the Circuit Court. Having regard to the limited effect of the decision, it would not be appropriate for the High Court to entertain an argument not made to the District Court. Accordingly, the second ground of challenge cannot succeed.

Criminal Law Act 1976

70. For completeness, it is necessary to address an argument advanced by reference to section 13 of the Criminal Law Act 1976. In broad terms, the section provides that where an offence is committed by a person while they are serving a sentence of imprisonment, then any sentence imposed in respect of that offence shall be consecutive upon the original sentence. The section applied not only in circumstances where a person was serving a sentence of imprisonment in an (adult) prison, but also where a child was serving a detention order in the now defunct St. Patrick’s Institution.

71. There was some debate at the hearing before me as to whether the section might be read as making a consecutive sentence mandatory in circumstances where a child serving a detention order at a children detention school commits an offence.

72. St. Patrick’s Institution had been expressly included within the definition of a “prison” under the Prisons Act 2007 as originally enacted. Having regard to the fact that the former St. Patrick’s Institution had always had a different legal status than a children detention school under the Children Act 2001, it would be inappropriate to purport to give an “updated” interpretation to the Criminal Law Act 1976 by now construing the reference to St. Patrick’s Institution as extending to embrace a children detention school.

73. It follows, therefore, that there is no express statutory provision which makes a consecutive sentence mandatory in the case of an offence committed while serving a detention order under the Children Act 2001. Nevertheless, the sentencing court would be entitled, as a matter of general sentencing principles, to elect as between a consecutive or concurrent period of detention. Even in the absence of an express statutory provision governing the contingency, a sentencing court would still be required to consider a consecutive period of detention where an offence had been committed while in custody: the offender would undergo no additional punishment if the subsequent sentence were made entirely concurrent with the earlier one (O’Malley, §5-166).

74. As discussed at paragraphs 41 and 42 above, the prospect of a child detainee, who had committed an assault causing harm upon a member of staff, being allowed credit for time already served pursuant to earlier, unrelated detention orders is remote.

CONCLUSION AND PROPOSED FORM OF ORDER

75. For the reasons explained at paragraphs 25 to 36 above, this court has concluded that there has been no culpable prosecutorial delay. Having regard to this finding, it is not necessary, strictly speaking, to address the question of prejudice nor to weigh the balance of justice. For the sake of completeness, however, and to ensure that all issues have been decided at the level of the High Court lest there be an appeal, these issues have been addressed.

76. Even if there had been culpable prosecutorial delay, the balance of justice lies in favour of allowing the criminal prosecution to proceed. On one side of the scales, the Applicant has failed to establish a “real possibility” that he has been prejudiced by the supposed “loss” of more favourable sentencing principles. It remains open to the Applicant to argue that the time served under earlier detention orders should be taken into account by the sentencing court in the event that he is convicted of the alleged offences. On the other side of the scales, the seriousness of the alleged offences and the public interest in maintaining discipline and control in children detention schools and in ensuring the safety of staff members, come down decisively in favour of allowing the criminal prosecution to proceed. (Paragraphs 37 to 50 above).

77. The separate grounds of challenge in relation to the section 75 hearing are not well founded for the reasons explained at paragraphs 59 to 69.

78. Accordingly, these judicial review proceedings must be dismissed in their entirety.

79. As to the legal costs, this court’s provisional view is that the Director of Public Prosecutions, having been entirely successful in the proceedings, is entitled to an order for adjudicated costs as against the Applicant. This would represent the default position under section 169 of the Legal Services Regulation Act 2015. This provisional view has also been informed, in part, by the fact that the Applicant failed to disclose in his earlier affidavit that he had committed an offence on 3 February 2024, i.e. the unlawful taking of a vehicle. The Applicant subsequently pleaded guilty to, and was convicted of, that offence on 29 April 2024. The Applicant’s affidavit gave the mistaken impression that he had ceased any criminal activity by April 2021 and that he was “attempting to move on with” his life. This non-disclosure amounts to a breach of the duty of candour which an applicant for judicial review owes to the High Court. This is conduct of a type to which regard may be had in determining the incidence of legal costs.

80. If either party wishes to contend for a different form of costs order than that provisionally proposed, they will have an opportunity to do so when this matter is next listed. This matter will be listed on 6 October 2025 for submissions on the final form of order.

Appearances

Tony McGillicuddy SC and Harriet Burgess for the applicant instructed by Broderick Cahalane Moore Solicitors LLP Sunniva McDonagh SC and Lily Buckley for the respondent instructed by the Chief Prosecution Solicitor