DK v The Director of Public Prosecutions (Approved) [2023] IEHC 273 (24 May 2023)

THE HIGH COURT

[2023] IEHC 273

[Record No. 2022/80 JR]

BETWEEN

D.K.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Barr delivered on the 24^th day of May, 2023.

Introduction.

1. This is an application by way of judicial review, whereby the applicant seeks, inter alia, an injunction restraining his continued prosecution by the respondent on one charge of money laundering, contrary to ss. 7(1)(a)(ii), 7(1)(b) and 7(3) of the Criminal Justice (Money Laundering & Terrorist Financing) Act, 2010, on grounds of delay.

2. In particular, the applicant asserts that from the date of the alleged offences the respondent was on notice that the applicant was a minor, and due to blameworthy prosecutorial delay by the gardaí and the respondent, the applicant has been deprived of the statutory protections afforded to him under the Children Act, 2001 (hereinafter “the 2001 Act”), by virtue of the fact that he reached the age of majority prior to being charged.

Background.

3. The prosecution in question is currently pending before the Circuit Criminal Court in Wicklow. It arises out of incidents alleged to have occurred on a date between 22^nd April, 2019 and 30^th April, 2019 when the applicant was 16 years and 3 months.

4. The applicant had a bank account with AIB Bank, the phone number attached to the account being that of his mother. Sometime in or around 16^th April, 2019, the applicant connected with an account by the name of ‘MoneyMake’ on social media, which was not known to him previously. The person or persons behind this account messaged him and asked for his bank account details in order to lodge money into the account, indicating that the applicant would receive 30% of the monies lodged into the account, in exchange for withdrawing the money from post offices.

5. The applicant stated in his interview with the gardaí, that two weeks later, on 30^th April, 2019, those who controlled the social media account telephoned the applicant. They told him that monies had been lodged into his account. The applicant stated that roughly €6,800 had been lodged into his account.

6. Three men, presumably those in control of the ‘MoneyMake’ account, collected the applicant from school on 30^th April, 2019, in order to have him withdraw the monies from his account. They drove him to three different post offices and the applicant attempted to withdraw the monies from his account. He was successful in withdrawing £2,000 from one of the post offices. The applicant outlined that when he was unable to withdraw money at the other post offices, the three men realised that the card was no longer functional. The applicant stated that the three men took his bank card at that point, and he returned to school.

7. On 30^th April, 2019, the applicant’s mother received a text message from AIB Bank, asking her to confirm a withdrawal from the account of the applicant to the value of €2,387.49 with a ‘Y’, confirming the withdrawal was the applicant, or an ‘N’, refusing the transaction. The applicant’s mother, unaware of the scheme as arranged with the ‘MoneyMake’ social media account, was of the view that there were not sufficient funds in the applicant’s account to satisfy this transaction; therefore, she replied to the text message with an ‘N’, indicating that the transaction should be declined. AIB Bank then informed the applicant’s mother that the card had been placed on hold.

8. It appears from the reports exhibited in the book of evidence provided by the gardaí, that other amounts varying between €4,315.45 and €8,000 were both lodged and withdrawn from the account of the applicant on different occasions. The applicant denied any knowledge of those transactions, at interview with the gardaí.

9. On 1^st May, 2019, the applicant and his mother attended Blessington Garda Station and informed Garda Andrew Curry of unusual activity occurring on the AIB Bank account of the applicant. The applicant made admissions to the gardaí as to how the monies had been lodged and withdrawn from his account, as set out above. The applicant’s mother also provided a statement to the gardaí.

10. On 2^nd May, 2019, the gardaí were granted an order pursuant to s. 63 of the Criminal Justice Act, 1994 directing that information relating to the applicant’s account held by AIB be given to the gardaí. On 3^rd May, 2019, the applicant’s phone was given by Garda Curry to Wicklow Garda Station for forensic examination. This examination was completed on 7^th June, 2019 and confirmed a large number of transactions on the applicant’s bank account, on 30^th April, 2019.

11. On 9^th September, 2019, the gardaí received information from AIB, as to the movements on the applicant’s account, having made enquiries of AIB in that regard on 30^th July, 2019.

12. On 21^st October, 2019, Garda Curry requested that he be given assistance from a colleague, who was familiar with fraud investigations. On 23^rd October, 2019, Detective Garda Whelan was assigned to the applicant’s investigation file. Detective Garda Whelan made further enquiries of AIB on 6^th December, 2019, to which, AIB responded to with further information on 23^rd December, 2019.

13. In his affidavit, Garda Curry averred that from January to March 2020, he was involved in the rollout of a new investigation management system in the Wicklow division and that from March 2020 to July 2020, all investigations were on hold due to the onset of the Covid-19 pandemic.

14. On 15^th July, 2020, the applicant and his mother met with the gardaí by arrangement. The applicant was arrested pursuant to s. 4 of the Criminal Law Act, 1997. He was detained and interviewed, at which interview he made further admissions as to the events which occurred on and around 30^th April, 2019.

15. On 23^rd July, 2020, a youth referral file was created on behalf of the applicant. After some delays, wherein the National Juvenile Office requested further information from the gardaí on two separate occasions, the applicant was deemed unsuitable for inclusion in the Garda Youth Diversion Programme (hereafter “GYDP”), on 15^th March, 2021.

16. The applicant had attained his majority on 1^st February, 2021.

17. On 10^th September, 2021, the DPP gave directions concerning the prosecution of the applicant.

18. The applicant was charged on 14^th October, 2021 at Naas District Court. Sgt. Jacob informed the court on that date that the DPP had directed summary disposal of the matter and gave a brief outline of the facts of the case. Judge Zaidan refused jurisdiction to hear the matter, determining the offence to be non-minor in nature.

19. The applicant was remanded on bail to 25^th November, 2021 for service of the book of evidence. The book of evidence was served upon him on that date and he was returned for trial on bail before Wicklow Circuit Criminal Court on 1^st March, 2022.

Chronology.

20. It is necessary to set out a chronology of the charge against the applicant in order to assess the delay in the investigation and prosecution of the matter:

1^st February 2003	Applicant was born.
16^th April 2019	The applicant connects with the ‘MoneyMake’ social media account.
30^th April 2019	Numerous transfers are made into the applicant’s bank account, and he is asked to withdraw those monies by three men who collect him from school. The applicant’s mother receives a text message from AIB asking her to confirm the transactions are genuine; which she declines to do.
1^st May 2019	The applicant and his mother attend Blessington Garda Station.
2^nd May 2019	gardaí obtain a s. 63 order directing disclosure of the applicant’s bank account details from AIB.
3^rd May 2019	gardaí serve the s. 63 order on the manager of AIB Bank.
3^rd May 2019	The applicant’s phone is given to Wicklow Garda Station for technical examination.
7^th June 2019	Technical examination of the phone is completed.
30^th July 2019	Enquiries made with AIB as to the documentation relating to the applicant’s account.
9^th September 2019	Documentation on foot of s. 63 order received by the gardaí.
21^st October 2019	Garda Curry requests assistance from a detective familiar with such fraud investigations.
23^rd October 2019	Detective Garda Whelan is assigned to assist with the applicant’s investigation file.
6^th December 2019	Detective Garda Whelan applied for further information from AIB.
23^rd December 2019	Further information is received by the gardaí from AIB.
January 2020	D/S Treacy reviews the investigation file.
15^th July 2020	The applicant is arrested.
23^rd July 2020	Youth Referral file is created for the applicant.
31^st July 2020	National Juvenile Office request the skeletal file.
20^th August 2020	Skeletal file sent to the NJO by the gardaí.
1^st February 2021	The applicant attains his majority.
4^th March 2021	Youth referral file resubmitted with amendments requested by the NJO in February 2021.
15^th March 2021	Applicant is deemed unsuitable for inclusion in the GYDP.
15^th March 2021	File submitted to the DPP for directions.
23^rd June 2021	More information is sought by the DPP.
4^th July 2021	Additional information requested is sent to the DPP by the gardaí.
19^th August 2021	DPP requests further information.
22^nd August 2021	Further information is furnished to the DPP by the gardaí.
10^th September 2021	DPP direct prosecution of the applicant.
6^th October 2021	Applicant is charged.
14^th October 2021	The applicant appears in the District Court. Judge Zaidan refuses jurisdiction to hear the case.
25^th November 2021	book of evidence is served upon the applicant.
14^th February 2022	Leave to proceed by way of judicial review is granted.

Applicant’s Submissions.

21. Counsel on behalf of the applicant, Mr. James Dwyer SC, submitted that there was culpable prosecutorial delay on behalf of the respondent in this case, for which the respondent had offered no explanation.

22. Counsel submitted that the delay between the applicant presenting at the garda station on 1^st May, 2019 and his arrest on 15^th July, 2020, had not been explained by the respondent. It was submitted that although Garda Curry had outlined that he sought assistance from a colleague as to the progression of the investigation against the applicant, there was no reason that this guidance was necessary given the straightforward nature of the offence.

23. Counsel submitted that in circumstances where the applicant was a minor at the time of the alleged offence, there was a higher onus on the respondent to prosecute with expedition and ensure that the matter came on for trial before he had attained his majority. In circumstances where there had been a significant delay at various points of the investigation, it was submitted that leaving the applicant’s prosecution to the wayside, amounted to culpable prosecutorial delay.

24. Counsel stated that it was astounding for the respondent to aver that all investigations were suspended in the period of March 2020 - July 2020 due to the Covid-19 pandemic. It was submitted that this could not justify the delay in prosecuting the applicant. It was submitted that there was no new information available to the respondent at the time of the applicant’s arrest and charge, that had not been available within a very short period after the commission of the alleged offence. Counsel submitted that the gardaí could have obtained the bank records from the Bank in a faster manner, if they so wished.

25. It was submitted that as a result of the delay in this case, the applicant had suffered tangible prejudice in losing the procedural protections provided by the 2001 Act. Counsel outlined that the applicant had lost the following: his right to a s. 75 hearing; his right to reporting restrictions; the requirement that he be accompanied by a parent or guardian; his right to have the proceedings heard in private; that any potential sentence would interfere with the applicant’s legitimate activities and pursuits, as little as possible; that detention be imposed only as a measure of last resort; the stipulation that a court take into account as mitigating factors a child’s age and maturity level when determining penalty; the stipulation that a court have regard to the child’s best interests; the possibility of a conditional discharge; the mandatory referral for a probation report; the possibility of a community sanction under the Children Act; the possibility of a deferment of any detention order; and the prohibition on imprisonment.

26. Counsel submitted that owing to the length of delay in the case, the significant prejudice to the applicant in the loss of the procedural protections and the obligation on the respondent to prosecute matters involving a minor with expedition, the balance of justice favoured allowing the relief sought.

27. Counsel submitted that in this case the applicant had co-operated with the investigation. He had not contributed to any delay.

28. While it had been submitted by Garda Curry that these issues were better ventilated before the trial judge in this case; it was submitted that a Circuit Court judge did not have jurisdiction to reinstate the protections afforded to minors, to an accused who had attained the age of majority.

Respondent’s Submissions.

29. Counsel for the respondent, Mr. Oisín Clarke BL, submitted that the prosecution had taken significant steps in the investigation of the alleged offence in the perceived periods of delay, which prevented the characterisation of this period as being culpable prosecutorial delay.

30. Counsel submitted that this offence was serious in nature, as evidenced by Judge Zaidan refusing jurisdiction to hear the case in the District Court, as he had held that the offence was of such a serious nature as to warrant trial by jury. In the circumstances, he submitted that this factor weighed in favour of allowing the prosecution to continue.

31. It was submitted that the DPP’s direction of summary disposal, and the refusal thereof by Judge Zaidan, was akin to an application pursuant to s. 75 of the 2001 Act. He submitted that, in all likelihood, Judge Zaidan would have refused a similar application made by the applicant pursuant to s. 75.

32. Counsel submitted that many of the applicant’s concerns as to the prejudice that would be incurred in ‘aging out’ were remediable by the trial judge at the sentencing stage, even when the person convicted was an adult. Factors such as the applicant’s age and maturity at the time of the offence and the discretion of the trial judge to order a probation report, alleviated some of the prejudice suffered by the applicant. Counsel relied on Cerfas v. DPP [2022] IEHC 70 in that regard.

33. In relation to the balance of justice, counsel submitted that this was a case in which the balance was in favour of allowing the prosecution of the applicant to continue, owing to the serious nature of the offence with which he was charged and the minimal prejudice that would be suffered by the applicant in ‘aging out’. To that end, counsel relied on Daly v. DPP [2015] IEHC 405; Kelly and O’Malley v. DPP [2009] IEHC 200; Smyth v. DPP [2014] IEHC 642; and Ryan v. DPP [2018] IEHC 44.

34. Finally, counsel submitted that in circumstances where the applicant had made admissions to the offence with which he had been charged, the balance should weigh in favour of allowing the prosecution to continue. In effect, he submitted that where the applicant had admitted to the offence, it was in the interests of justice that he be prosecuted for that offence. In that regard, he relied on the dicta of Hardiman J. in S.A. v. DPP [2007] IESC 43.

The Law.

35. In considering a case involving minor offenders, it is important to bear in mind the words of O’Malley J. in G. v. DPP [2014] IEHC 33:-

“Children differ from adults, not just in their physical development and lesser experience of the world, but in their intellectual, social and emotional understanding. It is for this reason that it has long been recognised that it is unfair to hold a child to account for his or her behaviour to the extent that would be appropriate when dealing with an adult.”

36. In that case, the applicant successfully sought an order of prohibition of a trial, where he was charged with sexual offences concerning a young girl. The alleged offences took place when the applicant was 15 years of age. It was not until 4 years later, that the applicant was finally charged. The judge held that there had been prosecutorial delay, admissions had been made and the applicant was facing real prejudice in the case. An order of prohibition was granted.

37. In the seminal decision of Donoghue v. DPP [2014] 2 I.R. 762, the Supreme Court affirmed that there is a special duty owed to a child or young person in relation to a trial with reasonable expedition. Dunne J., delivering the judgment of the court, outlined at para. 56:-

“The special duty of State authorities owed to a child or young person over and above the normal duty of expedition to ensure a speedy trial is an important factor which must be considered in deciding whether there has been blameworthy prosecutorial delay. That special duty does not of itself and without more result in the prohibition of a trial. As in any case of blameworthy prosecutorial delay, something more has to be put in the balance to outweigh the public interest in the prosecution of offences. What that may be will depend upon the facts and circumstances of any given case. In any given case, the age of the young person before the courts will be of relevance. Someone close to the age of 18 at the time of an alleged offence is not likely to be tried as a child no matter how expeditious the State authorities may be in dealing with the matter. On the facts of this case, had the prosecution of Mr. Donoghue been conducted in a timely manner, he could and should have been prosecuted at a time when the provisions of the Children Act 2001 would have applied to him. The trial judge correctly identified a number of adverse consequences that flowed from the delay. Accordingly, I am satisfied that the trial judge was correct in reaching his conclusion that an injunction should be granted preventing the DPP from further prosecuting the case against Mr. Donoghue.”

38. In the Donoghue case, members of An Garda Síochána had called to the minor applicant’s home, where a substance was found, which was believed to be heroin. The applicant was 16 years old at the time. He immediately took responsibility for the substance and signed an admission to that effect. Subsequently, the items found at his home were forwarded to the forensic science laboratory for analysis, where the substance was confirmed to be heroin. A period of one year and four and a half months elapsed between the date of the applicant’s arrest and his being charged with an offence.

39. The case came before the Supreme Court by way of the respondent’s appeal from the decision of Birmingham J. in the High Court, where it was concluded that there had been significant culpable delay in the case. On the basis of this conclusion, the judge went on to consider the consequences of the delay in the circumstances of that case. It was noted that in all likelihood the applicant would have benefitted from statutory protections afforded to minor offenders under the Children Act, 2001 and had therefore suffered real prejudice. An order of prohibition was granted in the High Court.

40. The Supreme Court held that having regard to all the circumstances of the case, there had been sufficient evidence before the court to enable the trial judge to reach the conclusion that there had been significant culpable delay in the case. The Supreme Court went on to hold that blameworthy prosecutorial delay alone will not be sufficient to prohibit a trial. The court must conduct a balancing exercise to establish whether any resulting prejudice to the accused, outweighs the public interest in the prosecution of serious offences. The court stated as follows at para. 52:-

“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 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.”

41. The Donoghue decision indicates that the first question to be determined by a court is whether or not there has been any culpable or blameworthy prosecutorial delay in the case. In the event that there has been such delay, then the court must carry out a balancing exercise to establish if there was, by reason of the delay, something additional to outweigh the public interest in the prosecution of seriousness offences. Factors such as the length of the delay, the age of the person to be tried at the time of the offence, the seriousness of the charge, the complexity of the case and the nature of the prejudice relied upon, are to be considered.

42. In ascertaining whether there has been blameworthy prosecutorial delay in the case, the court has had regard to the statement of White J. in Cash v. DPP [2017] IEHC 234, which was subsequently reaffirmed by Simons J. in Dos Santos v. DPP [2020] IEHC 252, at para. 23. In both cases it was confirmed that the relevant period of time for determining blameworthy prosecutorial delay, is the period between the date of the alleged offences and when the accused turned 18 years of age. White J. in Cash v. DPP stated at para. 12:-

“There was prosecutorial delay from 2nd February, 2015 up to the date of charge on 7th January, 2016. The applicant reached his majority on 8th July, 2015. I do not consider any delay subsequent to 8th July, 2015 as being relevant to the applicant’s challenge in these proceedings. I would not regard the delay as significant culpable prosecutorial delay. Even if the respondent prosecuted the matter without undue prosecutorial delay, it would not have concluded by way of indictable trial by jury before the applicant's eighteenth birthday.”

43. In the Court of Appeal decision in L.E. v. DPP [2020] IECA 101, an appeal against the High Court’s refusal to grant prohibition, was dismissed. The applicant in that case was a minor in 2015, when she allegedly committed offences, including assault causing harm, threats to kill and violent disorder. The Court of Appeal upheld the finding of the High Court that there had been no culpable or blameworthy prosecutorial delay. This was in circumstances which concerned a complex investigation with a number of suspected offenders and no admission of guilt. The High Court had held that although there had been “pockets of delay”, when looking at the matter overall, there had been no blameworthy or culpable prosecutorial delay. The court also held that the overall cause of the delay lay at the feet of the applicant.

44. In the judgment of the High Court in Daly v. DPP [2015] IEHC 405, Kearns P., stated that there can be no obligation on prosecution authorities to unrealistically prioritise cases involving minors. It was stated as follows 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. In the view of the Court there was no blameworthy prosecutorial delay in this case.”

45. In SW v. DPP [2018] IEHC 364, the applicant unsuccessfully sought prohibition. In refusing the reliefs sought, Barrett J. listed the following as relevant factors when conducting the necessary balancing exercise:-

“In deciding whether or not to grant any of the reliefs that the Applicant has come to court seeking, the court is especially mindful of the following factors:

(i) the need for expedition in the criminal process when dealing with children (see, inter alia, in this regard, BF v. DPP [2001] 1 IR 656, Jackson v. DPP & Walsh v. DPP [2004] IEHC 380, C (A Minor) v. DPP [2008] 3 IR 398, G v. DPP [2014] IEHC 33, and Donoghue v. DPP [2014] IESC 56);

(ii) the court’s finding that there has in the within case been culpable prosecutorial delay, albeit of a limited duration;

(ii) [sic] the fact that, as recognised in AP v. DPP [2011] 1 IR 729, 745, “The primary function of deciding to initiate or to continue a prosecution is conferred on the Director of Public Prosecutions” (albeit that this Court must ultimately vindicate the Applicant’s constitutional right to an expeditious trial);

(iii) the contention of the DPP that the public interest in seeing that serious offences are prosecuted outweighs the factors presented by such delay as may be (and has been) found to arise in this case;

(iv) the fact that the delay presenting in this case is not due to any dereliction of duty, gross negligence, strategy or tactic on the part of the State;

(v) the fact that there is no identifiable prejudice presenting for the Applicant notwithstanding such culpable delay as has occurred;

(vi) the fact that, as recognised in Blanchfield v. Hartnett [2002] 3 IR 207, 226, the court must presume, until the contrary is demonstrated, that the proceedings of a criminal trial will be conducted fairly and properly; there is no reason to believe that the contrary will apply here;

(vii) the fact that if the Applicant pleads or is found guilty, (a) the trial judge has the power to order the preparation of a probation report, (b) it is a principle of sentencing that a period of imprisonment will only be imposed as a last resort.

(viii) the fact that this is a case in which the evidence against the Applicant is compelling: there is CCTV footage of the incident and identification of the applicant; and

(ix) the fact that this is a case in which there has been an uncontested admission; as Hardiman J. noted in SA v DPP (Supreme Court, 17th October, 2007), para.19, “[I]t would…be extraordinary to prohibit a trial in circumstances where the defendant admits a significant amount of behaviour of a criminal nature.”

46. Turning to the various statutory protections which the applicant is alleged to have been deprived of as a result of the delay in the investigation, the relevant provisions of the 2001 Act are: s.75 (court’s jurisdiction to deal with indictable offences summarily); s.93 (reporting restrictions); s.96 (detention as a last resort), and s.99 (mandatory probation report). While it is not necessary to recite these individual provisions in their entirety, the court has had regard to them in considering the potential prejudice the applicant will suffer, having been deprived of them by virtue of “aging out”.

47. With regards to the loss of anonymity pursuant to s.93 of the 2001 Act, it was confirmed by McDermott J. in Independent Newspapers v. I.A. [2018] IEHC 120 that there was no provision extending the benefits of reporting restrictions when a child passes the threshold age limit of eighteen years in the course of criminal proceedings. He stated:-

“43. While it is clear that the protection conferred by s. 93 continues for life in respect of a child who is prosecuted, convicted and sentenced under the age of eighteen, there is no specific provision extending those benefits when a child passes the threshold age limit of eighteen years in the course of the criminal proceedings. Thus for example, a child whose eighteenth birthday occurs in the middle of criminal trial or is convicted the day after his eighteenth birthday would not have the protection of s. 93 or the sentencing regime that would apply to a child. These specific protections under the Children Act 2001 only apply to a child - a person under eighteen years of age. In cases where offences committed by a child are only detected when they enter adulthood, he/she does not obtain the benefit of any of the provisions of s. 93 or any other provisions of the Children Act. There may be good policy reasons to vest in a court a discretion to extend the protections of anonymity in cases which overlap the transition between childhood and adulthood but this has not been addressed by the Oireachtas which has confined the protections to those under eighteen years. This is consistent with the well-established principles of sentencing applicable to an adult who has committed an offence as a child but comes to be sentenced as an adult considered in the case law set out above.

44. The court must uphold the provisions of Article 34.1 of the Constitution that justice shall be administered in public ‘save in such special and limited cases as may be prescribed by law’. The restriction on publication or reporting matters that might tend to identify a child is specifically limited to persons under eighteen years. In Irish Times Ltd. v. Ireland [1998] 1 IR 359 the Supreme Court held that it was a fundamental right in a democratic State and a fundamental principle of the administration of justice under Article 34.1 that the people have access to the courts to hear and see justice being done save for limited exceptions. Any order restricting the contemporaneous reporting of legal proceedings by the press must be viewed as a curtailment of access by the people […]”

48. This was later followed by Simons J. in the High Court decision of L.E. v. DPP, who, upon interpreting s.93, held that reporting restriction were not available in the case of an adult accused. The decision of Simons J. was upheld in the Court of Appeal in DPP v. L.E. [2020] IECA 101, where Birmingham P. stated as follows:- “I do accept that the loss of anonymity is a significant disadvantage. However, it is necessary to put in the balance against that the seriousness of the case […]”

49. Similarly in Dos Santos and T.G. the court held that the prejudice suffered by the applicant was the loss of anonymity and reporting issues. In both cases, however, the balance weighed in favour of the trial proceeding and the prejudice was not sufficient to halt the prosecution, when considering the public interest in the prosecution of serious offences.

50. In relation to the balancing exercise limb of the test envisaged by Dunne J. in the Donoghue case, there have been a number of High Court cases where, notwithstanding the court’s finding of blameworthy delay, prohibition has been refused by the court upon conducting a balancing exercise and having come to the conclusion that the balance lay in favour of allowing the prosecution to continue.

51. In Ryan v. DPP [2018] IEHC 44, which concerned an alleged assault by the applicant, who was sixteen at the time of the offence, O’Regan J. found that there was prosecutorial delay of approximately nine and a half months, but nonetheless refused the reliefs sought having conducted a balancing exercise. It was concluded that the prejudice the applicant would experience was the loss of anonymity and the loss of a statutory right to a probation report; however, the balance tipped in favour of the public interest in prosecuting charges in respect of serious offences.

52. In SW v. DPP, the offences of assault were alleged to have been committed when the applicant was fifteen years old. The applicant had turned seventeen by the time he was charged. Barrett J. held that although culpable prosecutorial delay amounted to approximately 2 years, it was not appropriate to grant an order of prohibition, as he failed to find sufficient prejudice present in the applicant’s case.

53. The case of Dos Santos v. DPP [2020] IEHC 252, concerned an alleged offence of robbery and carrying a weapon with intent to commit an offence, when the applicant was sixteen years old. In was held by Simons J. that the delay of approximately twenty-two months was inordinate and without justification, but nonetheless he allowed the prosecution to proceed. The reliefs sought were refused in circumstances where the court held that the prejudice which had accrued, did not outweigh the public interest in allowing the prosecution to proceed.

54. In Wilde v. DPP [2020] IEHC 385, a case involving alleged criminal damage and assault offences, which took place while the applicant was aged sixteen and in custody, Simons J. held that the delay of more than two years was excessive. He nonetheless found that the balance of justice lay in favour of allowing the prosecution to proceed.

55. In Furlong v. DPP [2022] IECA 85, the applicant had failed to keep an appointment with the gardaí in which his arrest was to be executed by arrangement. Birmingham P. viewed this action as significant, and determined that in all likelihood the applicant would have received a s. 75 hearing, had he kept that appointment. Effectively, the Court of Appeal found that the applicant had contributed to the delay, and therefore contributed to the prejudice he suffered as a result of ‘aging out’, which was to weigh in favour of allowing the prosecution to continue (see paras. 38-40).

56. In Furlong, the Court, in its assessment of the seriousness of the charges levelled against the applicant, also analysed at the circumstances surrounding the commission of the offence, particularly the witness statements and the statement of the injured party, rather than merely the fact of a s. 3 charge alone (see paras. 35-37).

57. In Cerfas v. DPP [2022] IEHC 70, Hyland J. outlined that certain procedural losses incurred by an applicant when they ‘age out’, are not completely irremediable at the trial of the action, and this factor should be taken into account in analysing the prejudice suffered by the applicant. She stated as follows at para. 33:-

“[…] it is necessary to analyse closely the nature of the prejudice to the applicant. First, as pointed out by counsel for the respondents, the disadvantage to the applicant is not wholly irremediable. It is certainly true that the Children Act mandates certain approaches in relation to the trial, including the mandatory obtaining of a report by the probation services, and prohibits imprisonment of a person under 18, as well as providing for a wide range of options in relation to sentencing, including deferment of the sentence. However, I accept that submission of counsel for the respondent that many - although not all - of these approaches will be open in principle to the Circuit Court in the applicant’s trial if it goes ahead. The applicant’s legal team will be able to rely upon his age at the time of the trial, his age at the time of the attack, and the importance of obtaining a probation report given that he is a young person who is not been incarcerated to date. If he is convicted - and counsel for the applicant stressed that had he remained subject to the Children Act he would most likely have pleaded guilty - the importance of avoiding incarceration will undoubtedly be relied upon given the fact that he has no previous convictions. In other words, the applicant will lose the certainty of the protections of the Children Act; but some of those benefits remain available to him, albeit dependant on the exercise of discretion on the part of the Circuit Court judge rather than being an entitlement as they would have been under the Children Act.”

Conclusions.

Has there been Culpable Prosecutorial Delay?

58. In determining the question of whether there has been any culpable prosecutorial delay, it is necessary to have regard to the events which occurred between the date of the alleged offence on some dates between 16^th April, 2019 and 30^th April, 2019, when the applicant was aged circa 16 years and 3 months, and the date when the applicant turned 18 years, being 1^st February, 2021: see Cash v. DPP [2017] IEHC 234 and Wilde v. DPP [2020] IEHC 385.

59. The Donoghue case makes it clear that there is a special duty placed on the gardaí to investigate offences that involve minors with particular expedition. However, it has also been held in a number of cases that the gardaí cannot be expected to drop everything and give an unrealistic priority to the investigation of offences allegedly carried out by a minor: see dicta of Kearns P. in Daly v. DPP; and Birmingham P. in Furlong at para 22.

60. One also has to have regard to the age of the minor at the date of the alleged offence. The closer he or she is to 18 years, the less time that is available to the gardaí to conclude their investigation. If the child is reasonably close to the age of 18 years, it may be unrealistic to expect that the investigation can be concluded and the matter can be brought to trial, prior to his or her attaining the age of majority. One also has to have regard to the complexity of the investigation. That is why each case must be looked at on its own facts.

61. While the offences connected with money-laundering, as provided for in the 2010 Act, are perhaps more complex than the average case that would be investigated by the gardaí, the investigation in this case was not particularly complex. This was due to the fact that, on the day following the date when the monies had been withdrawn from the applicant’s account, he had attended with his mother at Blessington Garda station, where he had made a voluntary statement, which contained admissions as to how the money had been lodged to his account and withdrawn from it by him on the previous day. The applicant’s mother also provided a statement to the gardaí at that time.

62. The court accepts that the gardaí acted promptly in obtaining an order compelling the bank to make disclosure of the applicant’s bank account details. He obtained the order on 2^nd May, 2019 and served it on the relevant bank manager on the following day. He also obtained the applicant’s phone, which was subjected to a technical examination, which had been completed by 7^th June, 2019.

63. On 30^th July, 2019, further enquiries were made with the bank as to the documentation relating to the applicant’s account. That documentation was furnished by the bank on 9^th September, 2019.

64. The court notes that Garda Curry requested that he be given assistance from a detective who was familiar with fraud investigations. That request was made on 21^st October, 2019. Two days later, D/Gda Whelan was assigned to assist with the investigation. On 6^th December, 2019, he applied for further information from the bank. They replied reasonably promptly, by furnishing that information on 23^rd December, 2019.Thus, the court is satisfied that in 2019 there was no period of culpable prosecutorial delay.

65. Thereafter, in 2020, there was an unexplained period of delay from January 2020 until 15^th July, 2020, when the applicant was arrested. While Garda Curry has stated that in the period January to March 2020, he was involved in the rollout of the new investigation management system in the Wicklow division and that from March 2020 to July 2020 all investigations were “on hold” due to the onset of the Covid-19 pandemic, the court does not regard these as entirely excusing the delay during this period. The rollout of a new investigation system in the Wicklow division, did not justify doing nothing in the case in the first three months of 2020.

66. The court accepts that the onset of the Covid 19 pandemic and the severe restrictions that were imposed throughout the country from mid-March 2020 onwards, provide a reasonable explanation for the lack of movement in the investigation in the period March to July 2020.

67. However, there was a further period of delay thereafter, in the period 23^rd July, 2020 to 15^th March, 2021, when the applicant was deemed unsuitable for inclusion in the GYDP. During this period, the applicant had attained his age of majority on 1^st February, 2021. The court is not satisfied that there was any good explanation, or indeed, any explanation, offered for the delay in considering his inclusion on the GYDP in the period 23^rd July, 2020 to 15^th March, 2021.

68. When one looks at the essential elements in the investigation, the vast majority of these came to hand in the days following the events in which the applicant was involved on 30^th April, 2019. The necessary material was all but complete, with the delivery of further information by the bank on 23^rd December, 2019. By that time, the applicant still had approximately 14 months before the attaining the age of majority. The court is not satisfied that there has been any satisfactory explanation given by the respondent to explain or excuse the delay in prosecuting this case in the available window between the date of the offence and the date on which the applicant attained his majority, being a period of 1 year and 8 months; such that the court has to conclude that there was culpable prosecutorial delay in the investigation and prosecution of this matter.

The Balancing Exercise.

69. The fact that the court has found that there was culpable prosecutorial delay in this case, is not the end of the matter. The court is obliged to carry out a balancing exercise between the loss of procedural advantages that have been caused to the applicant as a result of the delay on the part of the prosecuting authorities; as against the public interest in having serious crimes investigated and prosecuted.

70. It was accepted on behalf of the applicant, that it is not sufficient for him to merely establish that there was culpable prosecutorial delay. He must go further and establish that as a result of that delay, he has suffered prejudice due to the fact that he attained his majority prior to the time when the criminal trial could reasonably have been expected to have been held; and that this prejudice is sufficient to outweigh the public interest in having the prosecution proceed. In this regard, the applicant has submitted that he has lost significant protections that would otherwise have been available to him under the 2001 Act, had he been brought to trial within the 20 month window between the date of the alleged offence, and his attaining his majority.

71. In particular, it is submitted that the applicant has lost two significant procedural rights that would have been available to him if his trial had been brought on for hearing while he was still a minor. First, he lost the right to make submissions on the issue of jurisdiction pursuant to an application under s. 75 of the 2001 Act. Section 75 of the 2001 Act provides as follows:

75.—(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.

72. Secondly, the applicant alleges that he has lost the benefit of the reporting restrictions and the requirement of anonymity, as provided for under ss. 93 and 252 of the 2001 Act.

73. In addition, the applicant submits that he has lost the benefit of the mandatory nature of a number of procedural provisions that are provided under the 2001 Act for infants who are facing criminal prosecution, which are as follows: that the proceedings are to be held in private; that any sentence should cause as little interference as possible with the child’s legitimate activities and pursuits; that any sentence should take the least restrictive form; that detention be imposed only as a matter of last resort; the stipulation that the court may take into consideration as mitigating factors a child's age and level of maturity in determining penalty; the stipulation that when dealing with the child a court shall have due regard to, inter alia, the child's best interests; the possibility of a conditional discharge order upon a finding of guilt; the mandatory referral for a probation report; the possibility of a community sanction under the 2001 Act; the possibility of a deferment of any detention order; and the prohibition on imprisonment.

74. In response to those submissions, it has been submitted on behalf of the respondents, that in relation to the loss of the right to make a s. 75 application, this loss was more theoretical, than real, due to the fact that in this case the DPP had directed that there could be a summary disposal of the matter, but the District Court judge had declined jurisdiction, holding that it was not suitable to be deemed a minor offence. It was submitted that in these circumstances, the likely outcome of any application on behalf of the applicant pursuant to s. 75, would have resulted in a refusal to accept jurisdiction by the District Court judge.

75. In relation to the loss of the right to have reporting restrictions and the right to anonymity, it was submitted that that had to be weighed against the public interest in the prosecution of serious offences. It was submitted that in this case, the alleged prejudice suffered by the applicant due to the loss of that statutory benefit, was outweighed by the serious nature of the offence with which he was charged. Counsel stated that while the applicant may have been a fairly small cog in the wheel, in relation to the money-laundering exercise, this did not detract from the fact that money-laundering was a serious offence, which was an essential element in the commission of organised crime and drug-dealing.

76. It was further submitted that in this case, the applicant had not made the case that due to the overall delay in proceeding with the prosecution of the matter, he had suffered any real or tangible prejudice in the conduct of his defence at the trial of the action.

77. In relation to the loss of the other procedural benefits under the Act, it was submitted that all that had happened by his attaining his majority prior to the trial, was that these matters were no longer mandatory to be taken into account, or mandatory steps to be taken; nevertheless, it was always open to the judge to have regard to these matters at the sentencing stage, notwithstanding that the applicant would be sentenced as a young adult.

78. In particular, it was submitted that the case law established that where the court was sentencing an adult in respect of crimes committed while he or she was a minor, the court had to have regard to the age and maturity of the convicted person at the time when he or she committed the offence: see Cerfas v. DPP and DPP v. AO’F.

79. Before looking at the loss of the right to anonymity and the loss of the potential s. 75 hearing in this case, it was noteworthy that in the Furlong case, the Court of Appeal recognised that the loss of these rights could amounts to a significant disadvantage. Birmingham P. stated as follows at paragraph 34:

“In my view, the combined loss of anonymity and a potential s. 75 hearing does amount to a significant disadvantage. However, that conclusion is itself not determinative. In DPP v. LE [2020] IECA 101, I commented: “I do accept that the loss of anonymity is a significant disadvantage. However, it is necessary to put in the balance against that the seriousness of the case…””

80. Turning to the consideration of these matters in this particular case, I find that the submission that was put forward by Mr. Clarke BL in relation to the theoretical nature of the loss of the right to make a s. 75 application in this case, is compelling. Owing to the fact that the district court judge had already declined to accept jurisdiction in the case, when the DPP had consented to summary disposal of the matter; I find that on the balance of probabilities, any s. 75 application that would have been made by the applicant to have the matter dealt with summarily, would probably have been unsuccessful. Accordingly, the loss of the right to make this application, which undoubtedly arose as a result of the prosecutorial delay this case, does not in reality amount to a significant prejudice suffered by the applicant.

81. However, I find that the loss of the right to anonymity is a significant prejudice. At the time of the alleged offence, the applicant was aged 16 years and 2 months. There was ample time to bring his case on for hearing before he reached his majority. Had that been done, he would have had the benefit of reporting restrictions on the criminal proceedings and, more particularly, he would have had the benefit of anonymity. Given that criminal proceedings in the Circuit Criminal Court are often reported in both the local and national newspapers, which circulate both in hard copy and online, and given the permanent nature of the reporting of matters online, this has to be seen as a significant prejudice.

82. In former times, where the reporting of cases only took place in hard copy versions of newspapers, the phrase “Today's newspaper, is tomorrow's fish and chip wrapping", was apposite. It meant, that for a young person who was convicted of a criminal offence in the past, when there was only reporting in hard copy news format, there was a good chance that his conviction would be forgotten within a relatively short period of time. Now, once the matter is reported on the internet, that matter will remain accessible and searchable against the person’s name forever. That is a significant handicap to impose on a young person, both in his or her future employment prospects and also in the social and other aspects of his life; because a future partner, a friend, or even children and grandchildren, who do a search against his or her name on the internet, will forever be informed of the conviction. As such, I hold that the loss of anonymity is a significant prejudice for a young man in the applicant’s position.

83. The court has not lost sight of the fact that under s. 258 of the 2001 Act, where a person is convicted of an offence while they were a minor, the record of that offence will be expunged after a period of three years. No reference to the conviction can be made in any subsequent judicial proceedings. However, that provision does not prevent the fact of his conviction, remaining searchable on the internet.

84. It is in these circumstances, that the permanent record of the conviction that will remain on the internet, if the applicant is convicted as an adult, will be a substantial impediment to the applicant’s employment prospects throughout his life.

85. The court holds that were the applicant to be convicted of the money-laundering offence and were that to be reported on the internet; it is highly likely that he would find it difficult to obtain employment in the retail or hospitality sectors. The court views this as significant prejudice to a young person embarking on their career and beginning to make their way in the world.

86. It is this disadvantage, which highlights the very serious prejudice which this applicant has suffered by not having had his criminal trial proceed before he reached his age of majority. Had that been done, he would have benefited from the right to anonymity and therefore, would not have carried the badge of having acquired a conviction with him for the rest of his life. Thus, his loss in this regard is far from theoretical.

87. In relation to the loss of the mandatory nature of the other procedural benefits that are accorded to people who face criminal trials as minors, as set out in the 2001 Act, much reliance was placed on the fact that a court when sentencing a young adult, could take the steps that were mandated on a mandatory basis prior to sentencing an infant, such as obtaining a probation report; and could also have regard to the age and maturity of the person at the time that they committed the offence, when imposing sentence. Insofar as it is suggested by the respondents that one can ignore the loss of the mandatory nature of these provisions, merely because some of them may be replicated on a discretionary basis in the context of a conviction as a young adult, seems to me to be an incorrect basis for disregarding the loss of the mandatory nature of the procedural benefits. I do not agree that they can be airbrushed out of the equation, simply because they may be available to the applicant on a discretionary basis by the trial judge. The loss of the mandatory nature of the provisions is itself prejudicial to the applicant.

88. While it was correctly submitted by counsel on behalf of the respondent, that the money-laundering charges under the 2010 Act, are serious charges; the court is of the view that in this case one is dealing with the lowest rung on the ladder in terms of the money-laundering operation. The applicant was, in effect, the stooge who allowed his account to be used to launder what appear to have been the proceedings of drug-dealing.

89. The fact that the lodgement and withdrawal of the funds occurred from an account in his name, which would be recorded in the records of the bank, meant that it was highly likely that he would be found out at some stage.

90. The fact that he had given his passport to the two men, and the fact that it has been seized Garda Donoghue in the course of a search of a house on 23^rd April, 2019, where drugs were found, made it almost inevitable that the applicant would have been arrested sooner or later.

91. Thus the court is satisfied that while money-laundering offences are serious offences, it cannot be so described in the circumstances of this case as regards the applicant.

92. Notwithstanding the public interest in the prosecution of serious offences, in carrying out the balancing exercise in this case, I have come to the conclusion that the appropriate order to make is an order prohibiting the future prosecution of the applicant in this matter. I have reached that conclusion due to the fact that the applicant was considerably less than the age of majority at the time that he allegedly committed these offences; the investigation was all but complete within a short number of months after the date of the offences and no credible excuse has been forthcoming why the gardaí and the prosecuting authorities did not bring this matter to trial well in advance of the applicant attaining his majority.

93. As a result of their failure to do so, he has lost a very significant right, being the right to anonymity. For the reasons set out above, I regard the loss of this right for a young person as being very significant. In addition, he has lost the mandatory nature of the procedural benefits that are provided for in the trial of infants under the 2001 Act, particularly at the sentencing stage. The fact that some of these may not be irremediably lost, does not mean that he has not suffered a prejudice in that regard.

94. Insofar as it was argued that the fact of the applicant having made admissions, should weigh in the balance against making the order of prohibition sought by the applicant; the court does not regard that argument as being well-founded. The respondent sought to rely on the dicta of Hardiman J. in S.A. v. DPP in support of their submission. Those dicta were made in a different factual context. There, the applicant was trying to prevent his trial on historical sex abuse charges, on grounds of delay. He asserted that due to the period of time and the delay in prosecuting him, he could no longer get a fair trial. It was in that context, that Hardiman J. made his comments about the relevance to the issue of guilt or innocence, that the fact of the applicant having made admissions, had to be considered.

95. In the present case, the key issue is whether there was undue delay in concluding the prosecution of the case, such that the applicant ‘aged out’ of certain procedural benefits that would have been available to him under the 2001 Act. The fact that he made admissions, made the investigation of the offence easier for the gardaí. The making of admissions does not weigh against the applicant’s case to have the trial halted because he has lost benefits under the 2001 Act due to delay on the part of the prosecuting authorities. In this case, it is accepted that the applicant did not contribute to any delay that arose in the investigation and prosecution of the case against him.

96. Looking at the entire circumstances in this case, I am satisfied that the appropriate order to make is that set out at paragraph 1 of the applicant's notice of motion dated 21^st February, 2022.

97. As this judgement is being delivered electronically, the parties will have three weeks within which to file brief written submissions on the terms of the final order and on costs and on any other matter that may arise.

98. The matter will be listed for mention at 10.30 hours on 15^th June, 2023 for the making of final orders.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> DK v The Director of Public Prosecutions (Approved) [2023] IEHC 273 (24 May 2023) URL: http://www.bailii.org/ie/cases/IEHC/2023/2023IEHC273.html Cite as: [2023] IEHC 273

High Court of Ireland Decisions