An 18-year-old man who is facing rape charges has been declined orders for various reliefs sought on the basis that there was culpable delay in the advancement of the investigation.
It was argued that the effect of the delay was that the man, who was 16 at the time of the alleged offence, had lost the protections which he would have enjoyed if the trial had taken place before his 18th birthday.
However, Mr Justice Max Barrett was satisfied that there was no culpable delay on the part of the prosecution and that it would have been “quite remarkable” if the trial had occurred within 13 months of the complaint.
RD complained that due to alleged delays presenting in the investigation of his alleged offences and in the decision to prosecute him, he was not brought to trial prior to his 18th birthday.
Due to the alleged delays, RD complained that he lost a variety of mandatory protections that he would have enjoyed under the Children Act 2001.
In the High Court, the principal reliefs sought were:
- An order of prohibition preventing the DPP from prosecuting RD in the prosecution currently pending before the Central Criminal Court
- Further, or in the alternative, an injunction restraining the DPP from so prosecuting, and
- A declaration that the delay in prosecuting RD is incompatible with his rights under the Constitution.
Period complained of
Counsel for RD said that from the date of the alleged offence in March 2016, to May 2016, matters progressed in a timely fashion; but complained that from June 2016 to April 2017 (when RD turned 18) there was culpable delay in the advancement of the investigation.
Justice Barrett did not consider the criticisms made by counsel to be correct of fair, and did not see the alleged culpable delay to present. For the sake of argument, Justice Barrett said that even if the court was to allow roughly one half of the 11-month period complained of, that 5 months was a level of delay that fell “well short of the type of delay to which the Superior Courts have historically taken objection, albeit that each case falls to be considered on its own facts”.
Justice Barrett then went on to consider the cases to which the court was referred to: In F v. DPP  1 IR 656 a culpable delay of 2 years and 9 months was held to arise; in M v. DPP  IESC 22 a culpable delay of 10 years was held to present; in Cullen v. DPP  IESC 59 a culpable delay of 23 years was held to present; in Donoghue v. DPP  2 IR 762 a culpable delay of between 12 and 14½ months held to be present; and in G v. DPP  IEHC 33 a culpable delay of 4 years was held to be present.
Justice Barrett said that in contrast to Donoghue in which the applicant had lost the prospect of being tried in the Children Court for an offence under the Misuse of Drugs Act 1977, the present case involved a serious offence which would only ever be tried before the Central Criminal Court. Furthermore, the offence in Donoghue was committed three days after the accused’s 16th birthday, whereas in the present case the crime was committed “a month shy” of RD’s 17th birthday. Justice Barrett said that it would have been “quite remarkable if… the within matter could ever have come to trial” before RD was 18, given the time needed for proper investigation, consideration for Juvenile Diversion, and the DPP’s decision whether to prosecute.
In RD’s case, considering if the appended timeline did indeed represent culpable delay, Justice Barrett considered the cases referred to in detail, and applied the principles to the present case.
In Donoghue, Justice Dunne stated that “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 Donoghue, Justice Dunne stated that a consequence of this is that “in any given case a balancing exercise has to be carried out in which a number of factors will have to be put into the melting pot, including the length of the 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”.
Considering all of the facts of the within case, Justice Barrett was satisfied that there was no culpable delay present, and declined to grant the reliefs sought.
- by Seosamh Gráinséir for Irish Legal News