The High Court has allowed a criminal prosecution of a young man to proceed, subject to reporting restrictions protecting the identities of both him and the complainant. The court found blameworthy prosecutorial delay but declined to prohibit the trial.
The applicant, identified in the judgment by the pseudonym Oscar, was 15 at the time of alleged offences on 10 May 2021. He is charged with defilement of a 12-year-old child and sexual exploitation of a child. The allegations, including that he recorded the encounter, have not been tested at trial. The judgment stresses that he is presumed innocent.
Mr Justice Garrett Simons found that the investigation and prosecution took two years and two months from the initial complaint to charge, despite the special duty to progress cases involving child suspects with reasonable expedition. He considered delays in interviewing the applicant and in processing the file at the Director of Public Prosecutions’ office unreasonable. The court accepted that the complainant’s interview took time to arrange because her mother initially withdrew consent.
The delay meant Oscar had reached 18 before the prosecution came on for trial and could no longer claim certain protections under the Children Act 2001. The judge found the only potential prejudice established was the loss of the Act’s reporting restrictions. He found no material prejudice from losing access to a mandatory probation report or child sentencing principles, and noted that Oscar had already received a District Court hearing on whether that court should deal with the case summarily.
The judge balanced the potential harm from identification against the public interest in having serious allegations involving a child heard at trial. He concluded the prosecution should continue, with ad hoc reporting restrictions to address the potential prejudice. The proposed restrictions prohibit publication of names, addresses, images or details likely to identify either participant. They also apply to the judicial review proceedings, although reporting the judgment’s contents is permitted if no identifying details are added. The court said the order would be subject to any waiver by Oscar.
The court also rejected Oscar’s arguments that the close-in-age defence could apply if he reasonably, but mistakenly, believed the complainant was at least 15, and that the DPP had acted unfairly by charging him under the offence covering children under 17. The judge held that the close-in-age defence requires the child to have actually reached 15. The court found no unfair change in the DPP’s position: the section 3 charge had been the only charge brought, and it carried a lower maximum sentence than the alternative offence discussed in the judgment.
The final form of the order and costs remained to be addressed. The judge listed the matter for submissions on 29 May 2024.