The Supreme Court has ruled that the prosecution of three young men over alleged sexual assault and false imprisonment committed when they were schoolchildren may proceed, despite unjustified delays that meant they were adults before being charged.
The three, identified only as Doe No. 1, Doe No. 2 and Doe No. 3, were about 15 when the alleged incident occurred in June 2019. The complainant, also a school student, had recently turned 16.
Doe Nos. 1 and 2 are accused of sexual assault. Doe No. 3 is accused of assisting in preventing the complainant from leaving and faces a false-imprisonment charge. All are presumed innocent.
The complaint was made to Gardaí in February 2020. The applicants were arrested that August while still 16, but were not charged until May 2022, by which point each was over 18.
The High Court found unexplained and culpable delays by Gardaí and prosecution authorities which breached the applicants’ constitutional right to a trial with due expedition. That finding was not appealed.
The Supreme Court nevertheless held that the seriousness of the allegations and the interests of the complainant and wider public meant prohibition of the prosecutions was not justified.
Ms Justice Iseult O’Malley said the most significant prejudice caused by the delay was the loss of the anonymity protection under section 93 of the Children Act 2001. That protection can continue beyond childhood and assists rehabilitation.
The court therefore upheld a High Court order prohibiting identification of the applicants. It varied the order so the Circuit Court may lift the restrictions, on an appropriate application, in circumstances equivalent to those allowed under section 93.
The ruling also clarifies that courts dealing with similar cases should consider remedies short of stopping a prosecution where blameworthy delay causes a child defendant to lose statutory protections. It leaves open the full extent of the District and Circuit Courts’ power to impose permanent anonymity orders.