Court allows trial to proceed despite prosecution delay, balancing duty to prosecute against accused's prejudice.

[2016] IEDC 14

THE CHILDREN COURT- DUBLIN METROPOLITAN DISTRICT COURT

DIRECTOR OF PUBLIC PROSECUTIONS (DPP)

AT THE SUIT OF GARDA D.

APPLICANT

-AND-

S.W.

RESPONDENT

1. The Defendant, SW, is now 18 years of age.

2. The accused was alleged to have committed an offence of assault, contrary to section 3 of the Non Fatal Offences Against the

Persons Act 1977, in spring of 2014.

3. The accused was a minor when he was arrested in autumn 2014.

4. In autumn 2014, the Garda Investigation was completed and in summer 2015 the Director of Juvenile Diversion Programme deemed

that the accused was not suitable for “inclusion” in its programme. In summer 2015, the prosecuting Garda received instructions to

proceed with the prosecution.

5. Between summer 2015 and the end of 2015 the prosecuting Garda made a number of unsuccessful attempts to charge the

defendant.

6. The accused’s brother (as a responsible adult) was the main point of contact for the An Garda Síochána. The prosecution stated

that the accused’s father is incapacitated and the accused’s mother was disinterested to the extent she did not wish to be involved

with the accused charges. The defence stated that the accused’s mother had accompanied the accused on some occasions to court

regarding separate issues. However, the accused was under the care of the Child and Family Agency and lived a somewhat chaotic

lifestyle. It does not appear that the Child and Family Agency were informed of the charges.

7. Specifically, the prosecuting Garda made an appointment by phone with the accused’s brother in summer 2015 for the accused and

the accused’s brother to attend a Garda station, but they both failed to attend on that date. There were two further unsuccessful

attempts by the prosecution to charge the accused where they called to the accused’s house, but there was no one present. The

prosecuting Garda had hoped to charge the accused in winter 2015 at the Children Court in Smithfield, but the prosecuting Garda got

detained due to a major crash on a motorway.

8. At the beginning of this year, the prosecuting Garda met with the accused at his home. However, the accused asked not to be

charged on this date as he wanted to attend his friend’s funeral. The accused claimed that he and his brother would attend a Garda

station after the funeral. Between this date and spring 2016, there were a number of appointments made by the prosecuting Garda

with the accused and the accused’s brother to attend a Garda Station, but they failed to do so. The accused was before the Children

Court at the end of 2015 on other matters. The accused was not charged on that date

9. The defence claims that there was a significant delay by the prosecution in charging the accused resulting in prejudice to the

accused. The defence referred to the principles set out in Patrick Donoghue V DPP [2014] 7 JIC 3006 which are discussed later in this

judgement. Specifically, the defence claims that the prosecuting Garda should have been more diligent in contacting the accused and

instanced, as an example that he should have arranged for a Garda Station closer to the accused home in order to make contact with

him.

10. It appears that apart from the requirements under the Garda Diversion Programme and Garda Case Managers that there is not a

separate system from adults in place to deal expeditiously with prosecutions for children. It is accepted that even if there was a

system in place it should not place unrealistic expectations on the Gardaí, but such a system would be of considerable benefit in

dealing with juvenile cases before the Court. The then President of the High Court, Kearns P, in Aaron Daly v the Director of Public

Prosecutions and Judge John O’Connor [2015 IEHC 405]405] stated at page 19;

“While the importance of ensuring a speedy trial in the case of juveniles is well established, certain factors may arise in

each case which determine how expeditiously this can occur and there can be no obligation on prosecution authorities to

unrealistically prioritise cases involving minors.“

11. The accused was a minor when he appeared before the Children Court in spring 2016 for Evidence Arrest Charge and Caution. On

that date, the Director of Public Prosecutions recommended to the Court that the offence could be dealt with in the Children Court.

The Court made an order for disclosure and remanded the case to summer 2016 for a hearing under section 75 of the Children Act

2001.

12. In summer 2016 there was no appearance by the accused and a bench warrant was issued for his arrest. The bench warrant was

executed in the Children Court and the accused was remanded on Bail for a hearing under section 75 of the Children Act 2001 for the

Court to determine if it would accept jurisdiction.

13. In summer 2016 the hearing under section 75 of the Children Act 2001 proceeded and the Court accepted jurisdiction. The case

was then remanded for a separate date for a hearing concerning the issue of prosecution delay.

14. The accused turned 18 years of age prior to this remand date.

15. The case was remanded twice more after this, until autumn 2016 for a trial hearing. All parties accepted that the initial trial could

proceed and that the issue of delay could be dealt with at directions stage by the Court. The Court received oral submissions from

the prosecution and the defence, together with an investigation timeline [a chronology of events from the date of the alleged

incident, to the date of disclosure by the prosecution to the defence] and a copy the following cases; Cormack and Farrell v DPP

[2009] 2 IR 208; Kelly and O’Malley v DPP [2009] IEHC 200; G v DPP [2014] IEHC 33; Patrick Donoghue v DPP [2014] 7 JIC 3006;

Sharon Cullen v DPP [2014] 10 JIC 1606; Aaron Daly v DPP [2015] IEHC 405; M.McD v DPP [2016] IEHC 210; J.H v DPP [2016] IEHC

509.

16 The defence for the accused stated they were relying on the judgement of Donoghue v DPP [2014] 7 JIC 3006, and that except

for the fact the Court has accepted jurisdiction under section 75 of the Children Act ,the delay and prejudice suffered by the accused

is analogous in this case . The defence urged the Court to dismiss the charges on the grounds that the delay constitutes a breach of

the special obligation of the respondent to deal expeditiously with juvenile accused persons and has caused the applicant to lose the

benefit of protections granted to juveniles.

Law

17. An accused person within the Irish criminal justice system enjoys a number of important rights, not least the right to a fair trial as

protected under Article 38.1 of the Irish Constitution. As part of the right to a fair trial, is the right to a reasonably expeditious

hearing as set down in State (Healy) v Donoghue [1976] I.R. 325, State (O’ Connell) v Fawsitt [1986] I.R. 362 and PM v Malone

[2002] 2 I.R. 560. Delay in the hearing of proceedings presents a real risk to a fair trial as it may cause prejudice and impact upon the

accused’s defence. Section 96 (1)(a) of the Children Act 2001 explicitly states that any court dealing with children charged with

offences must have regard to “the principle that children have rights and freedoms before the law equal to those enjoyed by adults”.

Therefore, young offenders enjoy the same right to a fair and speedy trial as adults. In fact, it is clear that there is a special duty on

the State to expedite proceedings where children and young persons are involved.

18. Kearns J. in Cormack and Farrell v D.P.P. [2009] 2 I.R. 208 noted that “delay in summary proceedings is less to be tolerated than

in other cases”. The Supreme Court in that instance found that it was not possible to pinpoint specific timeframes to clarify what

constitutes delay, but that a time would come where continuing failure to execute a warrant would amount to blameworthy

prosecutorial delay.

19. In D.P.P. v Arthurs [2000] 2 I.L.R.M. 363 O’ Neill J. found that there had been a failure of the State to ensure expeditious conduct

of cases in the District Court which had resulted in adding to an already excessive delay, totalling a delay of two years and three

months. This he found was “an unwarranted invasion of the accused’s constitutional right to an expeditious trial”. The District Court

judge was obliged to dismiss the case as the delay in that instance was excessive and inordinate, but did not state that such delay

incurs a presumption of prejudice.

20. The essence of the decision was further clarified in D.P.P. (Kelly) v O’ Sullivan [2005] IEHC 389 (Unreported, High Court, Dunne J.,

11th October, 2005) where Dunne J. outlined two basic tests which were identified in the Arthurs decision;

“1. The accused person must show that he is likely to suffer an actual specified prejudice or that the length of the delay

is so inordinate or excessive as to give rise to a necessary inference that there is a real risk that the trial will be unfair.

2. The second test focuses on the causes for the delay or the reasons or excuses that are advanced in order to justify

that delay and would apply in circumstances when failure to establish actual or presumptive prejudice may not conclude

the matter.”

21. The decision in D.P.P. v Arthurs [2000] 2 I.L.R.M. 363 essentially provides for three grounds for a dismissal; where delay causes

actual prejudice; where delay was such to create the presumption of prejudice and; where there is no actual or presumption of

prejudice, but where insufficient reasons are given for the delay.

22. Three cases have stated in considerable detail the approach to be taken when evaluating whether delay has reached a prohibitive

level:- PM v Malone [2002] 2 I.R. 560, PM v D.P.P. [2006] 3 I.R. 172 and McFarlane v D.P.P. [2008] 4 I.R. 117. The position was

summarised by Kearns J. in Devoy v D.P.P. [2008] 4 I.R. 235. at 253-254:

“(a) inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant’s constitutional entitlement to a

trial with reasonable expedition;

(b) prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to

an expeditious trial by directing prohibition;

(c) where there is a period of significant blameworthy prosecutorial delay less than that envisaged at (b), and no actual

prejudice is demonstrated, the Court will engage in a balancing exercise between the community’s entitlement to see

crimes prosecuted and the applicant’s right to an expeditious trial, but will not direct prohibition unless one or more of the

elements referred to in P.M. v Malone [2002] 2 I.R. 560 and P.M. v. Director of Public Prosecutions [2006] 3 I.R. 172 are

demonstrated;

(d) actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to

prohibition.”

23. It is clear that a special duty to proceed with expedition exists where cases concern young persons. In BF v. D.P.P. [2001] 1 I.R.

656 at 666 Geoghegan J. affirmed as follows:

“…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”.

24. Similarly, in the joined cases of Jackson v D.P.P. and Walsh v D.P.P [2004] IEHC 380 (Unreported, High Court, Quirke J., 8th

December, 2004), Quirke J. also recognised and emphasised the importance of dealing efficiently with cases concerning young

persons:

“It is no secret that persons in their late teenage years have particular vulnerabilities…[t]he interests of the community

will not be served by subjecting such persons to substantial delay in confronting them with complaints of criminal activity

made against them…[t]he interests of the community will surely be better served by efficient action on the part of the

State authorities…”

25. A.C. v D.P.P. [2008] 3 I.R. 398 involved a minor seeking an injunction to restrain the respondent from taking any further steps in a

criminal prosecution. The applicant was 13 years old but did not come before the Court until she was nearly 14 ½ years old. The

delay which the Court was concerned with was approximately fourteen months. The applicant’s solicitor had made great efforts to

expedite the proceedings as she was concerned for the well being, health and best interests of the applicant but there had been a

substantial delay in serving the summons on the applicant once same had been issued and no satisfactory explanation was provided

for this delay. The applicant’s counsel conceded that there had been no actual prejudice but presumptive prejudice on the basis of

the delay complained of. Dunne J. found that there had been blameworthy prosecutorial delay in that the State had failed to comply

with the special duty to expedite proceedings concerning young persons, especially where, as in this case, they were particularly

vulnerable. The applicant was extremely distressed and had made a serious self-harm attempts. Although the Court found that the

delay was not the cause of the applicant’s current state of difficulty, Dunne J. stated at 415 that:

“… in her particular vulnerable state, the delay in dealing with the prosecution of the applicant in respect of the charge

arising out of the events … can only have exacerbated the situation…”.

Ultimately, Dunne J. found that the case exhibited wholly exceptional circumstances where it would be unfair or unjust to put the

applicant on trial.

26. In Kelly & O’ Malley v D.P.P. [2009] IEHC 200, (Unreported, High Court, 30th April 2009) Hedigan J. examined the applicants’

argument that there had been undue delay in processing their cases and concluded an order of prohibition preventing the further

prosecution of the charges should not be granted. The applicants had been arrested as part of an investigation into the attack on

two foreign men who had been stabbed and one of whom had received critical emergency surgery. They were both aged 17 years at

the time of the incident in February 2007 and while the investigation was on-going, the applicants were considered for admission into

the Juvenile Diversion Programme. However, they were informed that they would not be admitted approximately three months later.

The applicants were then arrested in February 2008. They alleged that there had been a breach of statutory duty by the Director of

the Programme, as well as inordinate and inexcusable prosecutorial delay which had caused them serious prejudice. They submitted

that due to this delay they were no longer eligible to be considered for summary trial in the Children Court as per section 75 of the

Act of 2001.

The Court found that there had been no breach of statutory duty, that the first named applicant had contested the manner of the

offences and his culpability in same and clearly had not satisfied the statutory precondition of accepting responsibility for the criminal

behaviour required for admission.

Hedigan J. in applying the principles as set down by Kearns J. in Cormack v D.P.P [2008] IESC 63, [2009] 2 I.R. 208 found that

although the charges could have been brought more swiftly, the delay was not so as to warrant an order of prohibition as the

conduct of the prosecuting authorities was not “‘inordinate, blameworthy or inexcusable’ to any significant extent”. He also

acknowledged that even if he was incorrect, the societal interest in prosecuting violent crimes would far outweigh the infringement of

the applicants’ right to a speedy trial. He also considered that the judgment in M.M. v D.P.P. 2007] IESC 1, (Unreported, Supreme

Court, 23rd January, 2007 supported the presumption that the trial judge would act fairly and remedy any possible injustice that the

applicants might face. In this respect, Hedigan J. specifically referred to their age at the time of the commission of the alleged

offences being a factor which would undoubtedly be taken into account.

27. In Donoghue v D.P.P. (Unreported, ex-tempore, High Court, Birmingham J., 29th January 2013) and Patrick Donoghue v DPP [2014]

7 JIIC 3006 Supreme Court, the applicant was seeking an injunction to restrain the respondent from prosecuting him in relation to an

offence under the Misuse of Drugs Acts. At the time the offence took place the applicant had just turned 16 years old, but it was not

until he was approximately 17 years and four months that he was charged and not until he was 17 years and seven months when the

first substantive hearing took place. The submission of the file to the D.P.P. had been delayed while statements were being obtained

from two Gardaí. Birmingham J. found that there was “significant culpable prosecutorial delay” and recognised the particular and

special duty that the State has to ensure a speedy hearing for children and young persons. He noted that a realistic timeframe would

have been for the applicant to be charged within four to six months and had the case come to court when it should have, then the

applicant would have benefited from a number of provisions of the Children Act 2001. In particular, the prohibition of any report

revealing the name, address or school which might identify the child under section 93 of the Act of 2001 (as substituted by section

139 of the Criminal Justice Act 2006), the power to have certain offences expunged after three years under section 258 of the Act of

2001, as well as consideration being given to the premise of section 96 to use detention as a measure of last resort.

Birmingham J. found that the area of the greatest potential significance was within the context of section 75 which determines the

jurisdiction in which the case will be dealt with. If the case had been promptly heard then the applicant would have been 16 years old

and the matter would most likely have stayed in the District Court. Ultimately, he found that there had been unacceptable delay

which had given rise to serious consequences and ordered that the D.P.P. be restrained from further prosecuting the case.

28. The Supreme Court Judgement in Patrick Donoghue was delivered by Ms Justice Dunne on the 30th July 2014. Ms Justice Dunne

summarised the law and affirmed the judgment of Mr Justice Birmingham. At the end of her judgement, Ms Justice Dunne stated that

“the learned trial judge correctly identified a number of adverse consequences that flowed from the delay. Accordingly , I am satisfied

the learned trial judge was correct in reaching his conclusion that an injunction should be granted preventing the Director of Public

Prosecutions from further prosecuting the case against Mr Donoghue.“

29. I would like to point out from a practice point of view that while the High Court has an inherent jurisdiction to order prohibition of

a trial, the Children Court, being a court of statute, has no such jurisdiction. The issue in the Children Court can only be dealt with a

trial stage though an applicant has always the right to apply to the High Court for such an order.

30. In Aaron Daly v The Director of Public Prosecutions and Judge John O’Connor dated 25th June 2015, the then President of the

High Court, Kearns P refused an order of prohibition on the basis there was no blameworthy prosecutorial delay in that case . He

further stated “even if I am wrong in this, applying the balancing test described by Dunne J in Donoghue, I am satisfied that the

applicant has failed to tip the balance in favour of prohibition. As stated by Dunne J, something more than prosecutorial delay alone

needs to be established in order to outweigh the public interest in the prosecution of the offence.“

31. The right to a fair trial is not only protected by the Irish Constitution, but also by article 6 of the European Convention on Human

Rights (hereinafter “the ECHR”) which provides that everyone is entitled to a fair hearing within a reasonable time and expressly

provides for the exclusion of press and public in the interests of juvenile justice or special circumstances where publicity would

prejudice the interests of justice.

32. The applicant in McFarlane v D.P.P. took his case to the European Court of Human Rights alleging that his rights under article 6 of

the ECHR had been violated as criminal proceedings against him had not been reasonably expedited. The Grand Chamber found that

the:

“reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with

reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant

authorities and what was at stake for the applicant”. (2011) 52 E.H.R.R. 20 at para. 140.

This position was reiterated in C v Ireland (Application No. 24643/08, Committee Judgment, 1st March 2012.

33. The right to a fair trial within a reasonable time for children and young persons, within the context of article 6 of the ECHR was

examined by the Privy Council in Dyer v. Watson [2004] 1 A.C. 379. While the case concerned two sets of appeals, in one of the

appeals it was found that a delay of 28 months between the charging of a 13 year old boy with serious sexual offences and the

proposed trial was in breach of article 6 of the ECHR. Specifically, it found that when dealing with children, article 6 had to be read in

light of the UN Convention on the Rights of the Child (UNCRC) and the UN Standard Minimum Rules for the Administration of Juvenile

Justice 1985. It held that the case had not been treated with any urgency and no reasonable explanation had been given for the

delay which had been inordinate and excessive and had breached the reasonable time requirement under article 6 of the ECHR.

34. It is clear then that a special duty rests on the State to expedite proceedings where young persons are involved. The leading

judgment of A.C. v D.P.P., although it turned on the exceptional circumstances of that particular case, clearly acknowledges the

impact that delay can have on young people in particular.

35. Section 96 (3) of the Act of 2001 specifically provides that a court can take into consideration, as mitigating factors, a child’s

age and level of maturity in determining the nature of any penalty imposed unless that penalty is fixed by law.

36. O’ Malley in Sentencing Law and Practice (Dublin, 2006) briefly considers the significance of age when sentencing an offender. In

this respect, he maintains that what is most important when deciding sentence is not the age of the offender at the time of the

offence, but the offender’s age at the time of sentence. The context of his remarks should be noted, in that he was considering how

once the Children Act 2001 was fully in force, that persons under the age of 18 may not be imprisoned. He does, however, also note

that regard should be had to the age of the offender at the time of the offence so that a true level of the offender’s culpability can

be assessed.

37. In this respect O’ Malley refers to a leading U.S. Supreme Court judgment of Roper v Simmons 543 U.S. 551 (2005) which outlined

three reasons for treating juveniles (those under the age of 18) and adults differently. In that instance, the Court found that

differential treatment was warranted as it declared that juveniles are more susceptible to immoral and irresponsible behaviour; they

are vulnerable and lack control over their environment and they struggle to define their own identity and thus are more likely to

reform.

38. In the Irish Courts, the Court of Criminal Appeal has examined the weight that should be attributed to the age of the offender

when sentencing for a serious offence. In People (D.P.P.) v G (D) [2005] IECCA 75 (Unreported, Court of Criminal Appeal, 27th May

2005) the appellant had been convicted of murder. He was 15 years old when he killed another young boy and at the age of 16 years

was sentenced for same. The trial judge sentenced the appellant to life imprisonment subject to review by the Court in 2014.

The Court of Criminal Appeal found that the trial judge had clearly taken into account the age of the offender at the time he

committed the offence. It noted that a person of the age of 15 years was “by definition, immature, being a significant number of

years from adulthood” and that specific regard should be had to the prospect of rehabilitation. Notably, the Court of Criminal Appeal

observed that “each case will depend on its own particular circumstances and especially the age of the offender at the time when the

crime was committed”. Significantly, the Court also stated that children or young offenders who were convicted of serious offences

that ordinarily involve long custodial sentences should be considered as a “special category” in that an important onus lies upon the

Court to have regard to their rehabilitation and welfare because of their young age.

39. The UN Convention on the Rights of the Child envisages a situation where persons who were still under the age of 18 years at the

time of the commission of the offence should be treated in line with the specific protections available to juveniles, which would

include the duty to ensure criminal proceedings are dealt with in an expeditious manner.

40. In Donoghue, Birmingham J. specifically referred to the fact that it was a matter of real significance that a different statutory

regime would be applied to the applicant where the delay resulted in the matter being heard in the Circuit as opposed to the District

Court.

41. It is difficult to delineate a specific timeframe in which delay becomes blameworthy, and the facts in each case will determine the

issue. The delay which will be tolerated where children and young persons are involved is considerably less than that for adults. The

lower threshold for delay in cases of young offenders is supported not only by Irish authority but also within the context of the right

to a fair trial under article 6 of the ECHR and the UN Convention on the Rights of the Child. Moreover, there is a valid expectation that

summary proceedings will be expedited more quickly than indictable proceedings as observed in Cormack and Farrell.

42. I have noted the Supreme Court case of Sharon Cullen v D.P.P. and the judgement delivered by the Chief Justice [Denham CJ ]on

the 16th October 2014 and G v Director of Public Prosecutions [ [2014 ] IEHC 33, a judgement delivered by Ms Justice O ‘Malley, in

the High Court, on the 17th June 2013 . Both cases dealt with the substantial length of culpable prosecutorial delay. It is significant

that the disparity of ages between the accused when alleged to have committed the offences and the date of charges was of

sufficient severity to allow for prohibition of the trials notwithstanding there is also a duty to prosecute cases .G v Director of Public

Prosecutions is also significant in demonstrating that children and adults are different and, in effect, charging a child as an adult is in

effect charging a different person. Although the judgments in both of these cases are significant in clarifying the law, the facts in

both of these cases are not analogous to the facts in this case and specifically the defence didn’t argue this point.

43. The issue of section 75 of the Children’s Act does not arise as an issue as I accepted jurisdiction, but that is not the only

significant feature of the Children’s Act.

In Donoghue, Birmingham J. noted that had the delay not taken place there were a number of provisions in the Act of 2001 which the

accused in that case would have benefited from. He observed as follows:

“[The applicant would have benefited from] section 93 of the Children's Act 2001, as substituted by section 139 of the

Criminal Justice Act, 2006. That section prohibits the publication of any report which reveals, the name or address or

school of any child concerned in proceedings or any information which would lead to the identification of the child. It

seems to me that this provision is of considerable practical significance. That is so in particular when the section is

considered in combination with section 258 of the Children's Act, which provides that subject to certain conditions,

offences committed by persons less than eighteen years can become "spent" after three years. The ability to expunge the

record of conviction is particularly valuable if the original conviction did not and could not receive publicity.”

44. However, the judgement of Mr Justice Richard Humphreys in the case of M.MCD v Director of Public Prosecutions and Judge David

Kennedy [IEHC2016] stated that much of this prejudice can be ameliorated. For example, the issue of anonymity under section 93 of

the Children Act 2001 can be dealt with under section 45 (1) of the Courts Supplemental Provisions) Act 1961. The learned Judge also

stated that in effect section 96 of the Children Act 2001 which deals with principles of sentencing can be dealt with by the trial judge

including importantly the issue of detention as a last resort.

The issue of section 258(1) (a) of the Children Act which states that “he would have had the record of his conviction erased three

years after the commission of the offence” which still applies even if the child is an adult. A conviction according to section 258 (1)

(a) of the 2001 Act states that “the offence was committed before the person attained the age of eighteen years. “

45. The issue of the Garda Diversion Programme and the jurisdiction under section 75 of the Children Act 2001 does not arise in this

case

46. While the following issues are not raised in this case I would like to point out for future cases that while the issue of sentencing

can be ameliorated by a trial judge in the Children Court where a child is charged with an offence while under 18, but is convicted as

an adult, the jurisdiction is not exactly the same. The practice and procedure in the Children Court and the District Court are different

as for example evidenced by the practice direction DC04. However, children charged with offences under 18 years of age continue to

be dealt with in the Children Court while over 18 years of age. The time limits for Probation reports are usually 4 weeks or less for

children under 18 as is required by the Children Act, but in practice 8 weeks for adults

In relation to sentencing some options are open to children under 18 such as Family Conferencing which arise in the event plea of

guilty which are not open to adults when over 18. However, the Court can order a restorative justice approach to the sentence. In

the event of child reaching the threshold of detention as an alternative for children under 18 years of age, the Court can consider

deferred detention under sections 144-145 of the 2001 Act as amended by the Criminal Justice Act 2006 or detention and supervision

orders under sections 142-143 of the 2001 Act as amended by section 158 of the Criminal Justice Act 2006 which are not open to the

Court in practice for adults over 18 years of age. The issue of different detention regimes can also arise depending on the age of the

child.

47. I have noted the decision of Mr Justice White in JH v Director of Public Prosecutions [2016] IEHC 509 where he restated the test

for prosecution delay as “whether there is a real or serious risk that the applicant by reason of the delay, would not obtain a fair trial,

or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case. “He

further stated the delay on its own and an allegation of general prejudice based on such delay does not ground an application for

prohibition.

Decision

48. In this case, I believe the issue of delay in bringing this case to trial was substantially due to the prosecution up to the beginning

of 2016 and thereafter the delay is substantially due to the accused. The child who is alleged to have committed the offence is now

an adult. Despite the significant delay by the prosecution, the Court should enter into a balancing exercise as laid down by the Courts

as to the duty to prosecute against any prejudice to the accused. On that basis, I believe that in the interests of justice the trial

should proceed. However, I also believe that in the event of a conviction or a plea of guilty the issue of prosecution delay should be

taken into account as a significant mitigation factor without prejudice to any other mitigation factors that the accused may plead. In

this regard in the event of a sentence, the Court would also have to consider the issue of detention [including the issue of suspended

sentence] as a last resort noting the difference in age of the accused at the date of the alleged offence as well as now.

49. I also make an order prohibiting the identity of the accused under section 45 (1) of the Courts Supplemental Provisions] Act 1961

as if he was a child under eighteen years of age.

Judge John O’Connor