About this case:

• Citation:
  [2025] IESC 17
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

Delivering judgment for the Supreme Court, Ms Justice Iseult O’Malley found that “a Gilchrist order can be an appropriate order where blameworthy delay, resulting in the bringing of charges after the accused has reached the age of 18, has created a situation where the accused individual will be exposed to serious public odium”.

Background

The complainant alleged that in June 2019, when she had just turned 16 years of age, she was trapped in a building and sexually assaulted by younger male students.

Two of the boys, Doe No.1 and Doe No.2, were charged with sexual assault contrary to s.2 of the Criminal Law (Rape) Amendment Act 1990 (as amended) and another boy, Doe No.3, was charged with false imprisonment contrary to the Non-Fatal Offences Against the Person Act 1997.

Doe No. 1, Doe No. 2 and Doe No. 3 (the applicants) were arrested and interviewed but were not charged until each had reached his 18th birthday, with the result that they stood to be tried and, in the event of conviction, sentenced as adults rather than as children benefitting from the protections of the Children Act 2001.

The applicants brought judicial review proceedings seeking to restrain their further prosecution on grounds of prosecutorial delay.

The High Court

Mr Justice Garrett Simons held that there was unexplained and culpable delay by gardaí and the prosecution authorities constituting a breach of the constitutional imperative of expedition in the investigation and prosecution of offences alleged to have been committed by children.

Applying the balancing test outlined in Donoghue v. Director of Public Prosecutions [2014] 2 I.R. 762, [2014] IESC 56, Mr Justice Simons determined that the applicants had demonstrated potential prejudice in one respect only — the loss of the reporting restrictions applicable to children pursuant to s.93 of the 2001 Act. 

Mr Justice Simons referred to Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18, [2017] 2 I.R. 284, noting: “The High Court would appear to have jurisdiction, in an appropriate case, to impose reporting restrictions where necessary to vindicate the constitutional right to a trial with reasonable expedition. It would seem to follow, as a corollary of the High Court having jurisdiction to prohibit the criminal prosecution entirely, that it should have jurisdiction to take the less drastic step of imposing a modification to the form in which the trial takes place. The greater includes the lesser.”

Having considered the relevant statutory provisions, the High Court refused to prohibit the trial but directed that reporting restrictions would apply, highlighting that any loss on part of the complainant of her right to waive anonymity was a “lesser loss” than that which would arise if the court were to prohibit the trial.

Both the applicants and the DPP appealed.

The Supreme Court

Ms Justice O’Malley considered that the unexplained and unjustified delay was unfair to the applicants and that “neither the complainant nor the applicants should have had this matter hanging over them for so long”.

Having regard to Donoghue, the judge explained that in applications for prohibition or injunctive relief, where no specific prejudice is claimed and the sole ground for such relief is that the delay has led to a child offender “ageing out” and losing the protections of the 2001 Act, it will rarely be appropriate to grant such a remedy if the offence is found to be serious.

Highlighting that even where there is blameworthy delay, the loss of statutory protections is generally insufficient to justify prohibition in the case of serious charges, Ms Justice O’Malley explained that Donoghue envisaged the assessment of “seriousness” as involving a “case-specific, fact-based assessment which takes into account the alleged harm done by the offence, including harm to any victim, and the presence of any aggravating factors” which feeds into the consideration of whether the public interest to continue the prosecution outweighs the damage to the accused’s interests.

Agreeing with much of Mr Justice Simons’ analysis in respect of the relevant statutory provisions, the court opined that it was difficult to see how the loss of the procedure under s.75 of the 2001 Act, allowing a case to be made to a District Judge for summary disposal, was of much weight where the High Court was not well placed to speculate as to what the outcome of the hearing might have been had s.75 been available and could “never assume that the Circuit Court would not impose the appropriate sentence, whatever that might be”.

Turning to s.99 of the 2001 Act which provides for a mandatory probation report where a child faces inter alia detention, Ms Justice O’Malley emphasised that a person’s age at the time of the offence is not only relevant but is a central feature in the assessment of culpability, stating: “I would find it very surprising if a judge decided to impose sentence on an adult, for a serious offence committed by a child, without the benefit of a probation report. I would, therefore, give little weight to the fact that it would not be mandatory, as it would be if s.99 applied.”

As to the sentencing principles and options under s.96 and s.98 of the 2001 Act, the judge considered that those provisions focussed on the continuing development of the child and as such, their unavailability to an accused who has aged out “is not, in my view, to be seen as a ‘loss’ — it simply reflects the fact that one range of possible options is suited to one age group and not to another.”

Moving to consider the loss the reporting restrictions under s.93 of the 2001 Act, the court considered that “the position of a defendant who has benefitted from it contrasts strongly with that of persons who are subjected to the potentially life-changing effects of identification and publicity. The contrast is all the more striking if the latter find themselves in this position because of the blameworthy inactivity of garda or prosecution authorities.”

Finding that the seriousness of the crimes alleged were such that prohibition was not appropriate, the court considered that “it is not necessary to establish that prohibition would be an appropriate remedy before the Gilchrist jurisdiction can be invoked” where the interests protected by such an order are matters of sufficient value and weight.

The court summarised that where delay amounts to a breach of the constitutional right to a trial with due expedition which has caused the defendant to lose the protections of the 2001 Act, a court should consider granting remedies “falling short of prohibition to address the effects of the breach” on the defendant’s interest, including a Gilchrist order equivalent to the terms of s.93, if not to do so would expose the defendant to “serious public odium”.

In circumstances where there was a breach of the applicants’ constitutional right to a speedy trial and where that breach caused the loss of a valuable statutory protection enduring after the completion of the criminal process and which is consonant with inter alia the constitutional status of children, the Supreme Court was satisfied that the making of a Gilchrist order was appropriate in the case before it.

The court also held that while the High Court (and therefore the Central Criminal Court) has the power to grant a Gilchrist order with permanent effect, the District and Circuit Courts have the power, at minimum, to make an order covering the period during which they have seisin of a case.

Conclusion

Accordingly, the Supreme Court dismissed the applicants’ appeals and the DPP’s appeal.

Doe (No 1) & Ors v. Director of Public Prosecutions [2025] IESC 17