High Court: Attempt to restrain prosecution of ‘aged out’ child fails

About this case:

• Citation:
  [2025] IEHC 470
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons determined that “the supposed loss of opportunity does not constitute a prejudice capable of outweighing the public interest in the prosecution of the serious offences alleged against the Applicant”.

Background

The applicant had been serving detention orders at Oberstown Children Detention Campus when he threatened members of staff and assaulted a social care worker using the branch of a tree and his fists. The applicant also allegedly incited another child to do the same.

The applicant was charged with assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997, and with an offence of producing in the course of a fight, in a manner likely to intimidate another person, an article capable of inflicting serious injury contrary to s.11 of the Firearms and Offensive Weapons Act 1990.

At the date of the alleged offences and at the time when he had been sent forward by the District Court for trial in the Circuit Court, the applicant was a “child” within the meaning of the Children Act 2001. The applicant subsequently “aged out” by turning 18 years of age, prior to the hearing and determination of his prosecution.

The applicant sought to restrain his prosecution on the basis that there was culpable prosecutorial delay, causing him to lose the opportunity for any detention order which might be imposed on him in respect of the alleged assault to run concurrently with the existing detention orders which he was serving at the time, with the result that he would have served no additional time in custody.

The applicant also sought to quash the decision of the District Court to send him forward for trial to the Circuit Court on the basis that it erred in the approach that it took to the alleged prosecutorial delay.

The High Court

Having analysed the relevant jurisprudence, Mr Justice Simons considered that the first question to be addressed was whether the pace of the criminal investigation between the date of the alleged incident, being 7 September 2023, and the applicant’s 18th birthday, in January 2024, entailed culpable or blameworthy prosecutorial delay.

Studying the chronology of the proceedings, the judge observed that the initial stages of the criminal investigation were carried out with reasonable expedition, and that a lapse of approximately five months during which the referral of the applicant’s case to the Garda diversion programme was being prepared did not result in unreasonable delay.

In that regard, the court noted: “It is mandatory to make a referral in all cases and this step cannot be treated as perfunctory nor can it be assumed that an earlier decision to refuse admission to the Garda Diversion Programme will be determinative of a subsequent referral.”

The court further recounted that the applicant’s file had been submitted to the DPP’s Office within two to three weeks of the decision not to admit the applicant to the programme with directions issuing one week later, highlighting that these two “crucial stages” of the process had been completed within a reasonable overall period of seven months. 

Noting that the applicant was later charged before the District Court on 23 October 2023, Mr Justice Simons observed that there was additional procedural complexity in that the applicant was required to be interviewed and arrested in the foregoing period where he was already serving detention orders, and that he had the benefit of an expedited hearing pursuant to s.75 of the 2001 Act one month later.

Finding that the applicant had been charged within 13 months of the commission of the alleged offences and that he had the benefit of a s.75 hearing one month thereafter following which he “aged out”, the court explained that “an analysis of the case law does suggest a possible benchmark of at least eighteen months’ delay”.

The court continued: “It is also significant that the criminal prosecution had advanced to the stage of a section 75 hearing prior to the applicant ‘ageing out’. The applicant thus had the benefit of one of the most important of the protections under the Children Act 2001.”

Mr Justice Simons considered that the fact that there was insufficient “headroom” to accommodate not only a s.75 hearing, but also a contested trial before the Circuit Court, did not indicate that there was prosecutorial delay, explaining: “Having regard to the pressure of business before the Circuit Court, a period of fifteen to sixteen months will often be an insufficient period of time within which to complete a criminal investigation and to conduct a trial before the Circuit Court.”

The court was similarly unconvinced of the supposed “loss of opportunity” on part of the applicant to potentially have his sentence backdated or to run concurrently with his existing detention orders, concluding that same did not constitute a prejudice capable of outweighing the public interest in the prosecution of his serious offences and that it was likely that a detention order would have been imposed with a direction that same was to be served consecutively.

In particular, Mr Justice Simons pointed out that notwithstanding that the applicant had since been released from Oberstown, it remained open to him to invite a sentencing judge to have regard to the time he had already served and that there was no sensible reason as to why a convicted person must necessarily be in custody as of the date of his subsequent sentencing hearing in order to avail of the “totality principle” of proportionality in sentencing.

In response to the applicant’s argument that if he had been convicted and a further detention order was imposed, he would have completed a large part of same at Oberstown with the benefit of the services available to child offenders, Mr Justice Simons observed that “the relevant statutory provisions are intended for the benefit of a person who is detained while still a child; they were never intended to extend to an adult who has been convicted of an offence committed while a child”.

The judge continued: “By definition, the offence which has resulted in the detention order is an offence which will have been committed by a child, with the reduced moral culpability which that may entail. This reduced moral culpability is not, however, the focus of these specific legislative provisions. Rather, they are directed to the exigencies of detaining a child in custody. “

The High Court also upheld the District Court’s decision to send the applicant forward for trial, finding that it was not required prior to embarking upon a s.75 hearing to adjudicate upon the alleged prosecutorial delay as a preliminary issue where the constitutional limit on its jurisdiction means that it must be satisfied that it has jurisdiction before making any substantive order in the case.

The court further considered the applicant’s argument that culpable prosecutorial delay should be considered in the assessment of whether offences were fit to be tried summarily, noting that this point was never actually argued before the District Court and that it was not open to the applicant to make that argument now, and that “the assessment of whether there has been culpable prosecutorial delay is quintessentially a matter for the court of trial or, in limited circumstances, the court of judicial review”.

Mr Justice Simons also considered an argument in relation to s.13 of the Criminal Law Act 1976, concluding that there is no express statutory provision making a consecutive sentence mandatory in the case of an offence committed while serving a detention order under the 2001 Act.

Conclusion

Accordingly, the High Court concluded that even if there had been culpable prosecutorial delay, the balance of justice lay in favour of allowing the criminal prosecution to proceed and dismissed the proceedings.

K (Aged Out Child) v Director of Public Prosecutions [2025] IEHC 470