High Court dismisses judicial review claim regarding blameworthy prosecutorial delay and loss of minor trial status.

Neutral Citation [2015] IEHC 405

THE HIGH COURT

[2014 No. 453JR]

JUDICIAL REVIEW

BETWEEN:

AARON DALY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE JOHN O’CONNOR

RESPONDENTS

JUDGMENT of Kearns P. delivered on 25th day of June, 2015

The applicant herein seeks an injunction by way of application for judicial review restraining the first named respondent from further

prosecuting the applicant in respect of the offence alleged on charge sheet number 14542524 on the grounds that there was

blameworthy prosecutorial delay such that the applicant lost the benefit of being tried as a minor.

The applicant further seeks a declaration that the applicant’s right to a fair trial in the said prosecution, or in any other prosecution

purporting to arise from the allegations the subject matter of that prosecution has been irretrievably prejudiced and that the

applicant’s rights pursuant to Article 38 of the Constitution have been breached.

Alternatively, an order of certiorari is sought quashing the order made by the second named respondent on 10th June, 2014 refusing

to decide on the issue of prosecutorial delay in respect of this prosecution.

BACKGROUND

The applicant in these proceedings was born on 16th November, 1995. He is charged with section 3 assault on a young woman which

occurred on 21st April, 2013, when the applicant was 17 years old. The victim spoke to gardaí on the night of the incident and gave a

statement to Gardaí on 26th April, 2013 in which she alleged that she was the subject of an unprovoked attack whilst walking home

at night with her friend, Ms. Stacey Byrne. It is alleged that a glass bottle was thrown at her, causing an injury to her arm, and that

upon approaching a group of people, which included the applicant, in relation to this, she was punched in the face by him, causing her

to lose consciousness and resulting in injuries to her face and eye.

The manner in which the Garda investigation proceeded is set out in the affidavit of Sergeant Damien Mangan. He states that on the

night of the incident he met with the injured party at Beaumont Hospital and took her contact details and a brief account of the

incident. The victim named the applicant as being present during the incident but did not positively identify him as the person who

had assaulted her. The victim gave a formal statement to Gardaí on 26th April, 2013. Ms. Byrne also gave a statement to gardaí

around this time in which she identified a person named ‘Aaron Hatton’ as being the person who assaulted the injured party.

On 1st May, 2013 statements were taken from ambulance personnel who attended the scene. Throughout the months of May and

June Sergeant Mangan conducted a number of enquiries and met with various potential witnesses. However, he states that a large

number of witnesses indicated that they did not wish to make a statement and were uncooperative with the Garda investigation.

Sergeant Managan avers that in June 2013 he made a conscious decision not to approach any potential witnesses or suspects as he

was aware that a number of those believed to be involved in the incident were sitting their Leaving Certificate examination at that

time.

The applicant in these proceedings was interviewed by gardaí on 14th September 2013 after gardaí had approached all identifiable

witnesses. A transcript of this interview is exhibited. The applicant denied any involvement in or knowledge of the incident and offered

an alibi for the night in question.

After taking further statements on foot of information obtained in the applicant’s initial interview and a statement from the applicant’s

girlfriend which identified him as the perpetrator of the alleged offence, the applicant admitted the offence to the investigating gardaí

and retracted his alibi.

Sergeant Mangan completed the investigation file on 4th October, 2013 and forwarded it to his superiors who in turn forwarded it to

the Director of Children and Youth Affairs on 10th October, 2013. The matter was then progressed by the Garda Youth Diversion

Office and on 16th December, 2013 Superintendent Colette Quinn of that office wrote a letter to the local Superintendent indicating

her belief that the applicant was unsuitable for inclusion in the Juvenile Diversion Programme.

The applicant was arrested for the purpose of charging him with the offence on 25th February, 2014 and was released on bail to

appear before the Children’s Court on 11th March, 2014. The case file was sent to the DPP on 3rd March and directions were received

on 25th March. The matter came before the court again on 29th April, 2014 and it was agreed that full disclosure would be furnished

before the matter next came before the court on 27th May, 2014. On that date, disclosure having been provided on 22nd May, the

applicant’s representative advanced submissions regarding delay and prejudice and the matter was adjourned to 10th June, 2014 so

that this issue could be dealt with.

The second named respondent refused to strike out proceedings on grounds of delay on 10th June, 2014. A book of evidence was

served on the applicant on 22nd July, 2014 and the applicant was sent forward to Dublin Circuit Criminal Court on 10th October 2014.

Leave to bring the present proceedings was granted by Baker J. on 28th July, 2014.

SUBMISSIONS OF THE APPLICANT

Counsel for the applicant submits that the loss if the applicant’s entitlement to rely upon s.75 of the Children’s Act is a factor which

merits prohibition in the present case. Section 75 states that “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.” The applicant contends that delay on the part of the prosecution disqualified him from the provisions of

s.75 and the potential that a District Judge sitting in the Children’s Court would have accepted jurisdiction in the particular

circumstances of the case.

It is a well established principle that there is a particular onus on the prosecution to ensure a speedy trial in the case of a juvenile. In

BF v Director of Public Prosecutions [2001] 1 I.R. 656 the accused was alleged to have committed very serious sexual offences on

two girls when he was aged 14. He was interviewed by gardaí shortly afterwards and admitted the offences but was not charged. He

then travelled to England from where he was extradited 2 years and 9 months later. The Court granted an order of prohibition on

grounds of delay and indicated that where there was culpable delay on the part of the prosecution, an order of prohibition could be

granted irrespective of whether there was prejudice to the accused as a result of the delay. Counsel for the applicant points out that

Geoghegan J. emphasised that there was a “special obligation of expedition” where the accused was a juvenile at the time of the

offence.

In Jackson & Walsh v Director of Public Prosecutions [2004] IEHC 380 the first applicant was aged 15 at the time of the offence and

had been arrested and made admissions six weeks after the incident occurred. However, an arrest warrant for the purpose of charging

him had not been sought for a further period of 18 months. Further delay was caused due to the failure to serve the book of evidence

on the accused and an additional lapse of time also occurred in re-charging him with the offences. The second applicant was aged 16

at the time of the offence and there was a similar period of delay in seeking a warrant for his arrest. Ultimately, he was charged 3

years after the incident. Quirke J. granted orders of prohibition and rejected the contention of the respondent that the principle in BF

only applied to sexual offences. At p.17 of his decision Quirke J. stated as follows –

“I take the view that where a criminal offence is alleged to have been committed by a child or a young person there is

always a special duty upon the State authorities (over and above its fundamental duty), to ensure a speedy trial of the

child or young person in respect of the charges preferred.”

In Director of Public Prosecutions v Patrick Donoghue [2012] 332 JR the applicant was charged with possession of a quantity of heroin

three days after his sixteenth birthday. The applicant made admissions at the scene and in his garda interview and certification issued

from the Forensic Science Laboratory some six weeks after the incident, Nevertheless, the applicant was not charged by the

respondent until over 16 months after the date of the alleged offence. Birmingham J. found that there had been “significant, culpable

prosecutorial delay” in the case and considered the case law in this area. Birmingham J. concluded that the loss of protections under

the Children Act 2001 was a most serious consequence of the delay and granted an order of prohibition.

This decision was later appealed to the Supreme Court where Dunne J. analysed the reasons put forward by the respondent for each

period of deal in the case and found that, while a report from both the Forensic Science Laboratory and the Juvenile Liaison Office

was required, there was culpable delay on the part of the respondent. The respondent also argued on appeal that the High Court had

erred in failing to carry out a balancing exercise as envisaged in PM v Director of Public Prosecutions [2006] 3 IR 172 and that only

one factor identified in the US case of Barker v Wingo [1972] 404 U.S. 514 was relevant in the accused’s case.. The Supreme Court

held that the Barker v Wingo factors were of little relevance in the case as Mr. Donoghue was not contending that there was

prejudice to the fairness of his trial, but rather to his sentence in circumstances where the court accepted the likelihood he would

plead guilty. Such prejudice included factors specific to juvenile offenders such as his loss of anonymity, the absence of the statutory

principle that custody should be a measure of last resort and the requirement to obtain a pre-sentence report from the Probation and

Welfare Service.

In her recent decision in Cullen v Director of Public Prosecutions O’Malley J. applied the aforementioned case law and principle. The

decision was upheld on appeal to the Supreme Court (2014 IESC 59) where Denham CJ cited with approval the following passage from

O’Malley, The Criminal Process (2009, Dublin: Round Hall) –

“The young age of the defendant is another factor which may be placed in the balance once blameworthy prosecutorial

delay has been established. Courts are much less tolerant of delay in processing charges against young defendants

which means that a lapse of time will become blameworthy more readily than in the case of adult defendants”

In relation to the special duty on the State to ensure the seedy trial of a juvenile accused, counsel for the applicant further relies on

the decisions in A.C. v Director of Public Prosecutions [2008] 3 IR 398 and G v Director of Public Prosecutions [2014] IEHC 33. In the

latter case O’Malley J. referred to this general duty in the following terms –

“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.

Further, it has been accepted since, at least, the enactment of the Children Act of 1908, that the fact that these

aspects of personality are still developing means that intervention at an early stage, rather a purely punitive approach,

may assist in a positive outcome as the child reaches adulthood.”

O’Malley J. went on to state that the loss of special status of childhood through blameworthy delay was a very serious consequence

–

“I consider, rather, that the special legal status of childhood is an interest to be protected either on a sui generis basis

or under the general heading of the right to a reasonably expeditious trial. It seems to me that the loss of that status

through blameworthy delay on the part of the prosecution authorities may be, in itself, a matter resulting in real

prejudice which may entitle an applicant to relief…”

O’Malley J. further noted that while the fact that an accused person had made admissions was often a factor operating against

granting an order of prohibition, she held that this was a factor that “may have to be looked at in a different light in the case of

juveniles” as “[t]he making of admissions at an early stage facilitates expedition of the trial process.”

In the present case, counsel for the applicant submits that the alleged offence occurred seven months prior to the applicant’s 18th

birthday. He was identified by the injured party both on the night of the incident (21st April, 2013) and in her statement to gardaí five

days later. Nevertheless, there was a five month gap before the applicant was interviewed (14th September, 2013) and a further five

month delay before he was charged, by which time he had turned 18. It is submitted that these periods cannot be viewed as

anything other than culpable delay.

Counsel submits that the purported reasons for the delay are wholly inadequate. While Garda Mangan states that active inquiries were

being made between April and September, the significance of these enquiries are not explained. No explanation has been given by

Garda Mangan as to why a decision was made to delay the questioning of the identified perpetrator of the assault. Counsel submits

that it is clear from the book of evidence that gardaí had information as to the identity of the alleged perpetrator since the night of

the incident, which is at odds with Garda Mangan’s suggestion in these proceedings that there was “no concrete evidence about the

perpetrator of the assault.” In those circumstances, it is submitted that the evidence against the applicant was largely completed by

26th April 2013. The remainder of the evidence included in the book of evidence could and should have been gathered by gardaí much

sooner.

While it is accepted that the matter should have been referred to the Juvenile Liaison Office, it is submitted that an incomplete file

was sent and, despite only taking 18 days to make a decision when a completed file was eventually received, it took a further two

months to actually charge the applicant.

Counsel for the applicant submits that the loss of protections under the Children Act 2001 is a significant prejudice to the applicant.

In particular, the loss of the right to make submissions pursuant to section 75 of that Act is significant as very specific submissions

could have been made to the District Judge in relation to the age and maturity of the applicant. This deprived the applicant of the

prospect of having his case heard in the Children’s Court and sentence being imposed before he turned 18.

SUBMISSIONS OF THE RESPONDENT

Counsel for the respondent submits that the applicable law in this area has been summarised by the Supreme Court in the decision of

Patrick Donoghue v DPP [2014] IESC 56 wherein Dunne J. stated –

“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 eighteen 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.”

It is submitted therefore that the Court must first consider whether there is blameworthy prosecutorial delay in the case. If so, the

Court must next embark on the balancing test set out above. However, if the child is close to the age of 18 at the time of the alleged

offence, counsel for the respondent submits that there is no reality to the accused being sentenced as a child. It is submitted that

each case must turn on its own particular facts.

It is submitted on behalf of the DPP that there has been no blameworthy prosecutorial delay in the present case. A file was submitted

promptly to both the Youth Diversion Office and the office of the DPP once the investigation was complete.

Counsel submits that the applicant has placed considerable reliance on the fact that he was not interviewed until September 2013

despite the offence having been committed in April of that year. The respondent contends that the gardaí initially had scant evidence

against the applicant and, contrary to what is submitted on behalf of the applicant, it is not accurate to say that the applicant was

positively identified as the perpetrator on the night of the incident. The injured party told gardaí she did not remember who hit her as

she had been knocked unconscious. Her friend identified the perpetrator as being known to the injured party but wrongfully identified

him as ‘Aaron Hatton’.

It is further submitted that the investigating gardaí were required to approach a number of potential witnesses throughout May and

June. Gardaí approached these persons and also carried out house to house enquiries. It is submitted that the gardaí were met by a

‘wall of silence’ throughout the investigation and experienced considerable difficulty in securing statements which hampered the

completion of the investigation.

Sergeant Mangan accepts that part of the alleged delay was due to a conscious decision on his part not to approach potential

witnesses for a period in June as he was aware that many were undergoing their Leaving Certificate examinations. Furthermore, it is

submitted that the gardaí adopted an investigative approach of attempting to identify and interview as many potential witnesses as

possible before interviewing the suspect.

When the applicant was interviewed in September, it is submitted on behalf of the respondent that he provided a false alibi for the

night in question and denied any involvement in the offence. He did however identify his girlfriend and gardaí acted promptly in having

her interviewed in the presence of her father. Information obtained in this interview caused led to the applicant being interviewed for

a second time during which interview he retracted his alibi and made admissions in relation to the offence.

It is submitted that once admissions were made, the garda file was completed within three weeks and forwarded to the Youth

Diversion Office. That office took two months to consider the matter as they required clarification as to the views of the injured

party. By the time a recommendation issued on 16th December, 2013, the applicant had turned 18 on 16th November, 2013. The file

was then sent to senior garda officers for directions and the applicant was charged on 25th February 2014. Directions from the

respondent to proceed on indictment or to send forward on a signed plea issued on 25th March, 2014.

Counsel for the respondent submits that it is clear from an examination of the chronology of events that this is not a case where the

gardaí sat on their hands and delayed in conducting the investigation. Active attempts were made from the outset to conduct a

thorough investigation that would culminate with a file where there would be sufficient evidence for a prosecution. While it is

submitted that, in the absence of some obvious neglect or clear delay, the manner in which an investigation proceeds is a matter for

the gardaí, this investigation was in any event completed five and a half months after the incident.

It is submitted that cases where the courts have ordered prohibition of prosecutions involving juveniles generally turn on factual

situations where there has been very long periods of inordinate and inexcusable periods of delay. In the Patrick Donoghue case, for

example, the accused had made full admissions but an investigation file was not completed and sent to the DPP for some thirteen

months. There was also a further three month period of delay in charging the accused after directions were received from the DPP.

Counsel submits that Dunne J. specifically accepted that some delay will be caused by the consideration of the file in the Juvenile

Liaison Office and that an applicant cannot complain about the time taken to properly assess a person suitability for the programme. –

“The Act contains provisions at sections 17 to 51 in relation to the Juvenile Diversion Programme aimed at preventing

young offenders from entering the normal criminal justice system. It is part of the policy underpinning the Children Act

2001 that children should be kept out of the criminal justice system where possible; obviously, some time will be taken in

assessing whether an individual is suitable for diversion to the Juvenile Diversion Programme. Inevitably, this must cause

some delay in the prosecution of young offenders. No complaint could be made about the delay caused by the necessity

to engage with the National Juvenile Office and it is fair to say that no such complaint was made by Mr. Donoghue. Thus,

in considering the delay in any case involving a young person, it is important to bear in mind that some allowance must

be made for the time taken up by the involvement of the National Juvenile Office. Such delay will, of course, not arise in

the case of an adult offender.”

It is submitted that the facts of the present case are not dissimilar to the case of Paul Kelly and Karl O’Malley v DPP and Garda

Commissioner [2009] IEHC 200 where Hedigan J. refused prohibition in a case where a year had elapsed between commission of the

offence and the date of charge. In that case the two applicants were one and two months over seventeen years of age respectively

when the offence of s.3 assault occurred. Two months after the commission of the offence a file was submitted to the Juvenile

Liaison Office and a month later a decision that the applicants were not suitable for the programme. A further three months elapsed

before a file was sent to the DPP. Three and a half months later the DPP issued directions to charge the applicants with s.3 assault

and violent disorder. It was further directed that an up to date medical report be prepared which was received within two months.

The applicants were charged two weeks later, having already turned 18.

Hedigan J. referred to the following passage of Kearns J. in the decision in McFarlane v DPP [2008] IESC 7 –

“It is all too easy to lose sight of the fact that there are victims of crime whose interests must not be swept aside in

this exercise. The court must therefore analyse the causes of delay with great care, weighing up and balancing the role

of both the prosecution and the applicant and their respective contributions to delay.”

Hedigan J. went on to find that (at paras. 40 and 41) –

“I am unable to accept that the lapse of time which occurred is sufficient to warrant an order of prohibition preventing

the further prosecution of the offences charged. While it would undoubtedly have been preferable had the prosecuting

authorities brought the charges more swiftly, I do not think that their conduct was “inordinate, blameworthy or

inexcusable” to any significant extent.

Even if I were incorrect in that assessment, it seems to me society’s interest in the prosecution of violent attacks, such

as those alleged to have occurred in the present case, heavily outweighs any infringement of the applicants’ right to an

expeditious trial. It is not necessary for me to make any assumption as to how the Children’s Court would have dealt

with this matter; it is sufficient for the Court to note that the crimes alleged are of an extremely serious nature and to

weigh that factor in the balance.”

Hedigan J. further noted that the trial court would be presumed to act fairly in considering the age of the applicants when the offence

was committed –

“It is presumed that the trial judge will conduct the proceedings in the fairest manner possible to the applicants and, if

they are convicted, their age at the time of the commission of the alleged offences is undoubtedly a factor which will be

taken into account.”

Counsel for the respondent submits that the decision of O’Malley J. in G v D.P.P. [2014] IEHC 33 highlights that in order to secure an

order of prohibition there must be very significant periods of unexplained delay, counted in years and not in months. Counsel refers

the Court to the decisions in B.F. v D.P.P. [2001] IR 656 and Walsh & Jackson v D.P.P. (Unreported, High Court, Quirke J., 8th

December 2004), which are relied upon by the applicant, as examples of cases involving lengthy periods of prosecutorial delay which

warranted prohibition.

It is submitted that even if the Court finds that there has been culpable prosecutorial delay in the present case, which is strenuously

denied, the Court must then embark on a balancing exercise to determine whether prohibition should lie. In this regard, counsel relies

on the decision of Dunne J. in Donoghue where it was stressed that the closer a child is to 18 years of age, the less there will be to

put in the balance in favour of prohibition. Dunne J. stated –

“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 eighteenth 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.”

In the present case the applicant was 17 years and 5 months at the time of the commission of the offence. It was a very serious

offence and a difficult investigation where gardaí received little co-operation from a number of potential witnesses. While the

applicant contends that the loss of the possibility of gaining the benefit of section 75 of the Children Act 2001 is a major prejudice to

him, it is submitted that even if the investigation had been completed more expeditiously, it is unlikely that sentencing would have

been concluded before the applicant turned 18. In any event, section 75 requires the court to be satisfied that the offence is a minor

offence fit to be tried summarily and must also take into account the age and maturity of the child involved.

In all of the circumstances of this case it is submitted that no blameworthy prosecutorial delay has been established and that, in any

event, the balance is in favour of allowing the prosecution to be concluded in accordance with law.

DISCUSSION

It is a well established principle that there is a special duty on State authorities, over and above the normal duty in relation to adults,

to act expeditiously and ensure a speedy trial in cases involving juveniles. The reasons for this requirement are well set out in the

decision of O’Malley J. in G v Director of Public Prosecutions [2014] IEHC 33 and they relate primarily to the intellectual, social, and

emotional differences between children and adults. The cases relied upon by the applicant in the present proceedings make clear that

the courts are much less tolerant of prosecutorial delay in cases involving juveniles. However, as submitted by counsel for the

respondent, the decision of Dunne J. in Patrick Donoghue v DPP makes clear that each case will turn on its own particular facts and

that, if blameworthy prosecutorial delay is established, the court must also embark upon a balancing exercise to determine if there are

any additional factors which cause the implications of the delay to the accused to outweigh the public interest in prosecution.

The present case concerns a particularly reprehensible and unprovoked assault in which the victim had a glass bottle thrown at her

and almost immediately afterwards was knocked unconscious by a punch to the face. The gardaí spoke with the victim on the night of

the incident and took a formal statement five days later on 26th April 2014.

Counsel on behalf of the applicant submits that, having been identified by the injured party as being at the scene, and as Ms. Byrne

told gardaí that a person known to the victim named ‘Aaron’ had committed the assault, the applicant should have been interviewed

much sooner by the gardaí. By way of reply, the respondent submits that the gardaí had no concrete evidence against the accused

and there were difficulties with firm identification of the suspect at the outset. Therefore, the gardaí adopted an investigative

approach of gathering as much evidence as possible before interviewing a suspect. In my view, having regard to the duties owed by

gardaí to victims of crime and the public in general in terms of comprehensively and competently investigating serious crime, this was

a sensible course to adopt. Indeed, having regard to the fact that when the applicant was initially interviewed he denied all

knowledge of the incident and provided a false alibi, the desire on the part of the investigating gardaí to have as much information as

possible to confront any suspect with is even more understandable.

The Court accepts that the role of the investigating gardaí in this case was made more difficult by the fact that a number of

witnesses were entirely uncooperative and unwilling to make a statement. In those circumstances, numerous potential witnesses were

approached and house to house enquiries took place. Sergeant Mangan candidly accepts that he made a conscious decision not to

approach some witnesses during their Leaving Certificate examinations having regard to the stresses young people are already under

around this time. This decision can hardly be criticised. When the identity of the applicant’s girlfriend became known to gardaí during

his first interview, they acted swiftly in obtaining a statement from her and interviewing the applicant for a second time. It was during

this second interview that admissions were made and the garda file was then completed within three weeks and sent to the Garda

Youth Diversion Office.

A further period of delay arose at this stage. However, I am satisfied that it has been adequately explained by the respondent. The

Youth Diversion Office, upon receipt of the file, sought further information in relation to the views of the injured party. Sergeant

Mangan received this request on 22nd November 2013 and replied on 25th November, 2013. It is accepted by counsel for the

applicant that the Youth Diversion Office cannot be criticised for any delay and that office issued its decision on 16th December,

2013. By this stage the applicant had already turned 18 and it is arguable that any delay thereafter is not relevant to the applicant’s

loss of minor status. In any event, in January 2014 the file was sent to senior gardaí for directions and Sergeant Mangan

subsequently charged the applicant on 25th February, 2014.

In all of those circumstances I am satisfied that the garda investigation proceeded at a satisfactory pace and that any periods of

delay thereafter have been adequately explained by the respondent. 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.

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.

The applicant has placed considerable reliance on the loss of his ability to rely on the provisions of s75 of the Childrens Act. The

Court accepts the argument advanced on behalf of the respondent that even if the garda investigation had been completed sooner,

for example within three months of the date of commission, given the requirement to send the file to the Youth Diversion Office and

the office of the D.P.P., it is highly unlikely that a s.75 hearing and the sentencing of the applicant would have been completed by

the time he was 18. In considering this aspect of the case, the Court has also had regard to the finding of the Supreme Court in

Donoghue that “someone close to the age of eighteen 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”.

A further factor which tips the balance in favour of the respondent is the complexity and difficulties faced by the gardaí during the

course of the investigation as already outlined. Also in the ‘melting pot’ of factors the Court is required to consider is the seriousness

of the offence. This was a particularly nasty and unprovoked assault which left the injured party with swelling to her left eye and a

subconjuctival haemorrhage. Trial on indictment was directed by the respondent. No evidence has been put before the Court that the

applicant is below the average level of maturity of a person his age. At the time of the offence he was 17 years and 5 months and

informed gardaí during his interview that he had represented his school in boxing competitions and had been approached by local

boxing clubs to become a member.

The Court therefore finds that there has been no inordinate, blameworthy, or inexcusable delay on the part of the prosecuting

authorities. Furthermore, in all the circumstances of this particular case, the public interest in the prosecution of serious offences

heavily outweighs any suggested infringement of the applicant’s right to an expeditious trial.

As noted by Hedigan J. in Paul Kelly and Karl O’Malley v D.P.P. , the trial judge is required to conduct proceedings in the fairest manner

possible and, if convicted, the applicant’s age at the time of the commission of the offence is a factor which will undoubtedly be relied

upon by his legal representatives and which the court will take into account.

DECISION

In light of the foregoing I would refuse the relief sought.