A young man accused of raping an eight-year-old girl during a party when he was aged almost 16 has won a High Court order stopping his trial. The alleged incident occurred in July 2008 but the man was not charged until July 2012, just before his 20th birthday.
In an important judgment dealing with the rights of children charged with serious offences, Ms Justice Iseult O’Malley ruled the applicant, now aged 21, is entitled to orders restraining his prosecution on grounds the four-year delay in charging him had deprived him both of his right to be tried as a child and his right to anonymity.
There is “a special duty” on the prosecuting authorities to expedite cases involving children but there was “a serious failure” of the system in this case, she said.
The need for more speedy expedition of the trials of children was based on factors including that children differ from adults concerning not just their physical development but their intellectual, social and emotional understanding, she said.
She rejected arguments by the DPP that the appropriate test to apply in deciding if the trial should proceed was not whether there was any loss of rights under the Children Act, but, rather, whether the right to a fair trial was breached or the delay had caused undue stress and anxiety.
In this case, the delays arose despite the fact the investigation into the young girl’s complaint, made July 2008, was “quite straightforward” and largely complete within a month, the judge noted.
The only explanations given for the delay were that the original garda officer in charge of the investigation had been moved to another county, and a suggestion of a misunderstanding in the National Juvenile Office (NJO) as to whether it had received certain documents from gardaí. Neither explanation was adequate, she said.
While she assumed the NJO had a large caseload, its delay of two years in making a decision on the case was unacceptable. There was an impression the investigating gardaí and the NJO were to some extent leaving things up to each other and the result was they made a decision the file should go to the DPP just days before the accused’s 20th birthday.
The strongest argument in favour of letting the trial proceed was that the applicant was charged with very serious offences against a very young girl, she said. It was undoubtedly correct there was a public interest in a court decision on his guilt or innocence and in the mandatory supervision that follows a conviction for a sex offence.
However, in this case, the reality was there had been all but a formal plea of guilty on the man’s part and he had worked “very hard” over two years in a treatment and rehabilitation programme posited on his acceptance of guilt for his actions. It seemed to her “quite wrong” to put his achievements at risk at this stage.
Admission to the particular programme means the relevant child may not be prosecuted for the relevant offending behaviour, she noted.
Outlining the background, the judge said the case arose from an incident on a night in July 2008 at a party to celebrate a family event. The applicant was the son of a family friend and well known to the eight-year-old girl, X.
It was alleged the accused took X into a bathroom, locked the door, raped her vaginally and also attempted to, or did, rape her anally. The child told her mother, and a Garda investigation was initiated. On July 7th, the accused made a statement containing admissions about X and another girl, Y.
X was examined at Crumlin Children’s Hospital on the same day and a statement was taken from her two days later. The first Garda report was sent to the National Juvenile Liaison Office on July 22nd, 2008, and in October 2008 a report confirmed the man’s DNA was on X’s panties.
The judge outlined a long chronology of events during 2008, 2009, 2010, 2011 and 2012 relating to communications between the Garda, the NJO and the DPP. The documents relating to the case were sent to the NJO in June 2010 after it sought the “full file”, she said. In September 2011, a garda sergeant was assigned to “complete the file”.
In October 2011, the sergeant took a statement from Y’s mother who said she had in July 2008 told the original investigating garda about the allegations in respect of Y.
In July 2012, the sergeant sent the file and covering report relating to both children to the DPP. That month, the DPP directed the prosecution of the applicant on two charges relating to X, rape and attempted rape.
In October 2012, the applicant was sent forward for trial, but that remained on hold pending his judicial review challenge.
