The High Court has refused to prohibit the trial of A.B., finding that a total of about 69 weeks of prosecutorial delay was blameworthy but did not outweigh the public interest in trying a serious sexual assault charge involving a six-year-old complainant.
Mr Justice Twomey delivered the judgment on 4 April 2019 in a judicial review brought by A.B. against the Director of Public Prosecutions. A.B. was 15 years and six months old when the alleged offence occurred. He was charged in February 2017, after turning 17, and was an adult by the time of the later proceedings described in the judgment.
The judgment records that A.B. denied doing anything to the complainant. The prosecution alleged that he touched her, and forensic examination found a bloodstain on his tracksuit bottoms matching the complainant’s DNA. The court treated that as independent forensic evidence relevant to whether the trial should be stopped; it did not decide the criminal charge.
A.B. argued that the delay meant he would face trial as an adult without protections available to child defendants under the Children Act 2001, including anonymity and particular sentencing safeguards. The court identified three periods of delay: 20 weeks before an offence code was entered to progress a juvenile referral; about 35 weeks to forward a file for consideration by the Garda Youth Diversion Office, using the Garda’s sworn account of the dates; and about 14 weeks between confirmation that A.B. was unsuitable for diversion and forwarding the investigation file for transmission to the DPP.
The judge found that some delay was to be expected in dealing with a child’s possible suitability for the diversion programme, but no satisfactory explanation had been given for the length of these delays. Their cumulative effect amounted to blameworthy prosecutorial delay. The judgment also noted that A.B. did not complain about the speed of the prosecution after the file was sent on, and that the Children Court judge had treated him as a child when deciding whether to accept jurisdiction under section 75.
In balancing the delay against the public interest, the judge considered the seriousness of the allegation and the protections A.B. might lose. The judgment said a trial judge could grant anonymity and could take account of A.B.’s age and maturity at the time of the alleged offence when sentencing if he were convicted. A probation report could also be sought, and child-sentencing principles could be considered. These were possibilities identified by the court, not orders made in the judicial review.
The court concluded that the alleged assault of a very young child was serious and that the DNA evidence weighed against stopping the prosecution. It refused the order of prohibition. The judgment did not determine guilt or make a finding on the criminal charge.