The Children Court for the Dublin Metropolitan District ruled that a prosecution for an alleged assault committed when the accused was a minor should proceed, despite substantial delay by the prosecution in bringing the case forward. It said any prosecution delay should be treated as a significant mitigating factor if the accused is convicted or pleads guilty, and separately prohibited publication of his identity.
The judgment, delivered by Judge John O’Connor, concerns an allegation of assault contrary to section 3 of the Non-Fatal Offences Against the Person Act 1977. The accused, identified only as S.W., is now 18. The judgment does not determine whether the alleged assault occurred or whether he is guilty.
The court said the alleged offence took place in spring 2014 and the accused was arrested in autumn that year, while still a minor. The investigation was completed in autumn 2014. In summer 2015, the Director of the Juvenile Diversion Programme deemed him unsuitable for inclusion, and the prosecuting Garda received instructions to proceed.
The prosecution made several unsuccessful attempts to charge him between summer 2015 and the end of that year. Further appointments with him and his brother were missed between early 2016 and spring 2016. The accused appeared in the Children Court in spring 2016 for evidence, arrest, charge and caution. The court later accepted jurisdiction under section 75 of the Children Act 2001, after which the accused turned 18 before a further remand.
The defence argued that the delay had prejudiced the accused and breached the State’s special duty to deal expeditiously with cases involving young people. It sought dismissal of the charges. The court said the Children Court, as a statutory court, had no jurisdiction to prohibit a trial; an application for such an order could be made to the High Court.
In its decision, the court attributed the delay substantially to the prosecution up to the beginning of 2016 and substantially to the accused thereafter. It acknowledged significant prosecution delay but concluded, after balancing the duty to prosecute against possible prejudice, that the trial should proceed. It did not find the accused guilty or dismiss the charges.
If there is a conviction or guilty plea, the court said prosecution delay must be considered a significant mitigating factor, alongside any other mitigation advanced. It also said any sentence would have to consider detention, including a suspended sentence, as a last resort, taking account of the accused’s age both at the time of the alleged offence and at sentencing.
The court also ordered under section 45(1) of the Courts (Supplemental Provisions) Act 1961 that the accused’s identity be prohibited from publication as if he were under 18.