THE HIGH COURT
			1999 No. 30 JR
BETWEEN
B.F. 
(SUING BY HIS MOTHER AND NEXT FRIEND J.F.)
			APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
			RESPONDENT

JUDGMENT of Mr Justice Roderick H. Murphy delivered on the 21st day of March, 2000.

	This is an application for Judicial Review, in which the Applicant seeks an Order prohibiting his further prosecution by the Director of Public Prosecutions or, in the alternative, an injunction restraining further steps being taken by the Director in respect of certain charges.  These charges are currently pending before the Central Criminal Court.  The date for trial is fixed for the 24th day of July, 2000.
	Leave to apply for Judicial Review was granted by Mr Justice Geoghegan of the High Court on the 27th January, 1999.  The grounds upon which relief is sought as set out in the Statement of Grounds therein is verified by an affidavit of Mrs J. F., the mother of the Applicant, which affidavit was sworn on the 20th day of January, 1999.  
	The Applicant is charged with nine separate offences alleged to have occurred in April/May 1995 when the Applicant was aged fourteen years and three months.  The Complainants were two girls then aged seven and six respectively.  It is alleged that the Applicant committed sexual assault and rape contrary to Section 4 of the Criminal Law (Rape) (Amendment) Act, 1990 in respect of these two Complainants.
	The complaints were made to the Gardai in May, 1995.  The Gardai interviewed the Applicant in the presence of his father and he made a statement of admission on the 11th May, 1995 having been duly cautioned.
	The Applicant and the Complainants were referred to the Community Care Service.  The Applicant and his parents and the parents of the Complainants were seen by a Social Worker attached to the health board.
	The matter was referred in that month of May, 1995 to the National Juvenile Office for consideration.
	During that summer the Applicant and his parents were examined on several occasions by a Senior Clinical Psychologist on behalf of the health board.  The psychological assessment report was requested by the Office of the DPP in July, 1995.  On the 30th August this report was furnished to Sergeant K N and on the 7th September, 1995 was sent together with the Garda file to the Office of the DPP.  
	The Applicant and his family moved to England on the 6th September, 1995 to an address provided in advance by the Applicant's family to the Gardai.  
	On the 29th September, 1995 certain recommendations were made by the Office of the DPP to prosecute for Section 4 rape and sexual assault was made.  
	On the 12th October, 1995 the health board were asked to provide support for the Applicant on his return.  This request was refused on the 19th December, 1995 and the decision sent to the State Solicitor on the 5th January 1996. 
	Meanwhile, sample charges were sent to the State Solicitor on the 25th October, 1995 and on the 19th January, 1996, the issue of dealing with the Applicant by means of the JLO (Juvenile Liaison Office) Scheme was again raised.
	On the 23rd February, 1996 the DPP stated that the matter should proceed and that the Gardai should seek to extradite the Applicant.  Information was accordingly passed to the Extradition  Section Crime Branch on the 22nd March, 1996.  It was not until the 20th October, 1996 that the Extradition Section Crime Branch requested specimen charges as formulated by the DPP.  Certain queries were raised and dealt with in the month of November. 
	By letter dated 12th February, 1997 the warrants and certificates prepared by the Extradition Section were corrected and it was directed that they be amended and prepared again before being issued.  On the 24th March, 1997 the warrants and certificates were sent from the Crime Branch to the Superintendent and were returned for amendment at the Crime Branch on the 3rd April, 1997.
	After clarification of the official name for the signing of correspondence the amended warrants and certificates were received by the Superintendent on the 22nd May, 1997.  On the 7th July, 1997 the information was sworn at the District Court and on the 10th July the completed warrants and certificates were duly signed and sent to the Crime Branch.  They were forwarded to the London Metropolitan Police on the 14th July, 1997.  		Certain confusions raised in Devanney -v- The DPP over the appointment of Court Clerks led to the English authorities being requested not to execute the warrants until that matter was clarified in the Supreme Court in December, 1997.
	Thereafter the London Metropolitan Police were requested to execute the warrants and the Applicant was arrested on the 3rd February, 1998.  On the 24th February, 1998 the English Court made an extradition order.
	Habeas Corpus proceedings were commenced by the Applicant and were withdrawn on the 30th June, 1998 when the Applicant agreed to return to Ireland.
	The prosecuting authorities agreed not to seek delivery of the Applicant until he had finished the third level course he was undertaking in July, 1998.  Accordingly, it was not until the 30th August, 1998 that the Applicant returned to Dublin and was charged before the Dublin District Court.  

Judicial Review Proceedings
	As mentioned above, the application for Judicial Review was brought on the 27th January, 1999.  The reliefs sought were that of prohibition and injunction and staying of the prosecution pending determination of the Judicial Review proceedings.  
	The application was brought on the following grounds.
	(a)	that the Applicant had been denied the right to a trial with due expedition;
	(b)	that the Respondent had been guilty of delay in the prosecution of those charges and that the Applicant had been prejudiced thereby and
	(c)	that in the circumstances where the Applicant was told he should return to England and where he was told that it was unlikely that he would be prosecuted, the application to have him extradited to Ireland and tried there is an abuse of the process of the Court.
	
	The grounding affidavit was sworn by the Applicant’s mother, J.F., on the 20th January, 1999 a little less than a week before the Applicant's eighteenth birthday.  
	The statement of opposition to the application for Judicial Review was filed on the 10th May, 1999.
	Opposition was on the following grounds:

	1.	The application had not been brought within the time limited by the Rules of the Superior Court and no adequate explanation had been offered to the Court in respect of that fact; 
		Without prejudice;
	2.	The Applicant was not informed that it was unlikely that he would be prosecuted in relation to the offences;
	3.	Neither the Applicant nor his family were advised by members of An Garda Siochana to move to England as alleged;
	4.	The Applicant had not been denied a right to a trial with due expedition;
	5.	The Respondent (DPP) had not been guilty of delay in the prosecution of the criminal charges proffered against the Applicant;
	6.	The Applicant had not been prejudiced by any alleged delay;
	7.	The lapse of time between the date of the alleged offences and the date of trial had been caused by a number of different factors including, inter alia, the following:
		(a)	Consideration of the application of the Juvenile 		Liaison Office Scheme;	
		(b)	Comprehensive psychological assessment of the Applicant and his family;
		(c)	The proper preparation of the prosecution case;
		(d)	Liaison between the prosecuting authority and the relevant health board;
		(e)	Extradition proceedings against the Applicant;	
		(f)	Uncertainty as to the validity of proceedings issued against the Applicant, pending the decision of the Supreme Court in Devanney -v- The DPP, relating to the appointment of District Court Clerks;
		(g)	The institution of Habeas Corpus proceedings by the Applicant in England;
		(h)	The postponement, at the request of the Applicant of his return to this jurisdiction, pending the completion, by the Applicant, of a college course in England.
	8.	That there is no time bar to the prosecution of the offences charged therein;
	9.	That the Applicant would not be prejudiced by the fact that he is no longer a minor entitled to the benefit of certain statutory provisions, given the capacity and duty of the trial judge to take into account the age of the Applicant at the time of the alleged offences.

	The affidavit of Sergeant Kevin Noone sworn on the 10th May, 1999 outlines the stages in the prosecution of the offence, as summarised above.  He further states that he accepts that the Applicant and his family have co-operated and assisted the relevant authorities and that the English Police and Social Services were aware of the Applicant's alleged involvement and had contact with An Garda Siochana and the Irish Social Services.
	Mrs F alleges that the Gardai advised her and her family to move to England.  This is denied in the affidavit of Garda McH who had been involved in the prosecution of the Applicant and in dealings with Mrs F
	Mrs F. further alleges that she was informed by Sergeant N and Garda McH that because all of the people concerned with the allegations were children they, the Gardai, were of the view that the Applicant would not be charged with any offence.  Sergeant N avers as follows:-

	"I say I did not tell the Applicant's mother that the Applicant would not be charged with any offence.  The Applicant's mother was told that the matter would be decided on by the DPP and that the Applicant might be cautioned or might be prosecuted."

	Garda McH avers:-

	"Furthermore, I did not advise her that I was of the view that the Applicant would not be charged with any offence."

	It maybe with the passage of time and the advice and counselling of the social workers and clinical psychologists that Mrs F. believed, or, at least, hoped, that charges would not be proffered.  However, it seems to me that it is more likely that Sergeant N and Garda McH gave no such assurances.  Indeed, they could not; the matter was out of their hands. 

Prosecution of Young Persons
	Counsel for the  Applicant in this case has laid stress on the distinction between a young person between 15 and 17 as defined in Section 28 of the Children’s Act, 1941 and an adult as the Applicant now is, in relation to a charge before a Court.  
	Section 5 of the Summary Jurisdiction over Children (Ireland) Act of 1884, as amended by Section 133(6) of the Children’s Act, 1908 provides as follows:-

	“Where a young person is charged before a Court of Summary Jurisdiction with any indictable offence other than homicide, the Court if they thing it expedient so to do, having regard to the character and antecedents of the person charged, the nature of the offence and all the circumstances of the case, and if the young person charged with the offence when informed by the Court of his right to be tried by a jury consents to be dealt with summarily, may deal summarily with the offence and in their discretion adjudge such person if found guilty of the offence either to pay a fine not exceeding £10, or to be imprisoned with or without hard labour, for any term not exceeding three months.”

	Moreover, Section 102(3) of the Children’s Act, 1908 provides that a young person shall not be sentenced to imprisonment for an offence or committed to prison in default of payment of a fine, damages or costs unless the Court certifies that the young person is of so unruly a character that he cannot be detained in a place of detention (provided under the Act) or that he is of so depraved a character that he is not a fit person to be so detained.  

The Applicant’s Case
	Mr Hartnett S.C., on behalf of the Applicant submitted that the guarantee contained in Article 38.1 of the constitution that no person shall be tried on any criminal charge save in due course of law included a right to trial with reasonable expedition as provided in the judgment of Finlay C.J. in The State (O'Connell) -v- Fawsitt [1996] IR 362 at 378 where that right is infringed, and order of prohibition is the appropriate remedy.
	At page 379 Finlay C.J. stated:-

	"I am satisfied that if a person's trial has been excessively delayed so as to prejudice his chances of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by order of prohibition."

	Counsel for the Applicant further submitted that the community's constitutional right to have crimes prosecuted is not absolute and must be balanced against the right to a fair trial.  He referred to the supremacy of the right to a fair trial in terms of the judgment of Denham J. in D -v- DPP [1994] 2 IR 465 and 474:
	
	"The Applicant's right to a fair trial is one of the most fundamental constitutional rights afforded to persons.  On the hierarchy of constitutional rights, it is a superior right.  A Court must give consideration to the community's right to have this alleged crime prosecuted in the usual way.  However, on the hierarchy of constitutional rights there is no doubt that the Applicant's right to fair procedures is superior to the community's right to prosecute."

	Mr. Hartnett, S.C., submits that the Applicant will now, due to the delays, be deprived of the advantage of being a young person accused under Section 5 of the Summary Jurisdiction Act, 1884.  This, he states is of relevance given the background of the Respondent’s consideration of the Juvenile Liaison Scheme.
	Furthermore, the delay will be prejudicial, he argued, in relation to the Applicant’s memory and the memory of the two young girls particularly as he alleged that the acts were consensual.  That young person is now aged 19 and is being asked to face charges which could carry life imprisonment. 
	Moreover, both society and the law have moved on.  The Applicant could have avoided the provisions of the United Kingdom register of sex offenders and the provisions of the Sex Offenders Bill in this jurisdiction if there had been early prosecution of the matter.

The Respondent’s Case
	On behalf of the State, Mr. Maurice Gaffney, S.C., submitted that the gardai acted in a very exemplary way.  Certain facts were admitted by the Accused on which the charges were based.
	The only evidence is the Affidavit of the Applicant’s mother who does not refer to how the Applicant would plead.  Mr. Gaffney has submitted that the Applicant’s arguments were premised on a plea of innocence.  Yet there was no such averment from the  Applicant's mother.  The Applicant himself, though now of age, has no evidence before the Court.  
	The reality of the situation was either ignored or brushed aside according to the submissions of the Respondent.  The gardai, the Health Board and the Respondent were all conscious of a young person having admitted to certain matters involving little girls.  While they might have preferred an alternative other than prosecution, the attitude of the parents, as explained in paragraph 18 of Sergeant N’s Affidavit, had to be taken into account.  The letter of November 1996 shows the gentleness of approach.  
	When the Applicant’s sister-in-law informed the prosecution authority that the Applicant would not return voluntarily, arrangements were made for the Applicant’s extradition.
	In this regard delay is explained.  The Applicant’s Habeas Corpus application caused further delay.  The Applicant was arrested when he was 17 on the 3rd of February, 1998 and could have or could have been advised to have gone to trial as a young person.
	Mr. Gaffney submitted that the law was well settled in relation to the right to a trial with expedition.  However, he submits that this does not apply to a delay in deal with a person who had made admissions such as made by the Applicant.
	Moreover, the relevance of the 1884 Act is to sentence not to trial.  In any event, the Applicant cannot blame the State for this.  The alleged statutory prejudice is a matter for the trial Judge.  In addition, there is no evidence as to the Applicant’s anxiety.
	In reply, Mr. Hartnett argues that the State had always been dealing with the parents rather than with the Applicant.  With regard to the indication of how the Applicant was pleading, the Court had to take into account the constitutional presumption of innocence.  The State conceded that there had been unfortunate delays and, in his submission, the State was under an onus to explain.

Conclusions
	The facts underlying this case are substantially agreed between the parties in relation to the sequence of events.  There have been delays, some (but not all) of which were occasioned by the Applicant’s absence from the jurisdiction, the necessity of considering extradition proceedings, the Applicant’s initiation of habeas corpus proceedings as well as the prosecuting authorities apprehension regarding the application of the Devanney case and some administrative delays.  Moreover, some of the delay was in ease of the Applicant insofar as his course of study was concerned.
	All of these delays took place against a background of Complaints being made promptly; of the admissions made by the Applicant in the presence of his father which were not contested and of consideration of alternatives to prosecution and of the attitude of the parents of the young girl complainants.  
	With regard to the issue of prejudice relating to the prosecution of the Applicant as other than a young person, it seems clear to me that the Applicant was not prejudiced up to the time he attained the age of 17.  Much of the delay since then was caused by the Applicant and was to his benefit.
	It may very well be that there is no prejudice in the Applicant not being treated as a young person after the age of 17.  It seems to me that the trial Judge may take into account all the circumstances of the case and impose a sentence accordingly.
	The circumstances of D -v- DPP are, in my view, entirely different to the present case so far as specific charges and indeed admissions were made.  The risk to be subjected to an unfair trial can arise when actual or particular prejudice may have been suffered by the Applicant as a result of a delay which would render the trial  unfair.  In DPP -v- Byrne [1994] 2 IR 236, Finlay C.J. examined instances where the Court might intervene to prohibit a trial where there has been unreasonable delay between the date of the alleged offence and the date of the proposed trial.  The Chief Justice stated at 245:-

	"This must lead of course to a conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined."
	There is no doubt that each case must depend on its own circumstances and that there can be no definitive list of factors as stated by Denham J. in C -v- DPP (unreported), Supreme Court, May 28th, 1999 at page 24.  
	P P -v- DPP (unreported), Geoghegan J., October, 1999, involved a complaint made eighteen years after the event by an alleged victim who was sixteen or seventeen years of age when he was allegedly engaged in homosexual activity with the Applicant.  The trial judge held that the constitutional right was clearly infringed.  The trial should not be permitted to proceed.
	In McKenna -v- The Presiding Judge of the Dublin Circuit Criminal Court (unreported) Kelly J., January 14th, 2000 at page 12 it was stated:

	"There were considerable periods of inactivity and others of unduly slow activity rendering the delay inordinate.  In respect of at least some of these delays no particular explanation has been forthcoming and in respect of others the explanation has not provided a sufficient excuse for the delay.  An unexplained delay is an inexcusable delay."
  
	In that case the Applicant had been returned to trial on six charges.  Four of these had been brought under the Forgery Act, 1913 and the remaining two were brought under the provisions of the Larceny Act, 1916 as amended by the Larceny Act, 1990.  The offences were alleged to have been committed on various dates between April, 1991 and June, 1992.  The grounds relied upon by the Applicant, a partner in a firm of stockbrokers, were that by reason of excessive delay the Applicant had been denied his rights to a fair and speedy trial in breach of his constitutional rights; by reason of excessive delay would be unconscionable and oppressive to allow the Respondent to proceed with the criminal charges where they had chosen to take no action on foot of the subject matter of these charges for four and a half years and that by reason of excessive delay the Respondent created a reasonable expectation on the part of the Applicant that no charges would be brought and in circumstances the bringing of charges at this time constituted an unfair attack on the Applicant's personal rights.  
	Three separate periods of delay fell for consideration in McKenna.  There was a period of twenty months or six months from the time of the alleged offences to the date of the complaint; a delay of fourteen months from the date when the complaint was made to the Gardai and the date of the first arrest of the Applicant and the final period is that between the date of the first arrest in February, 1994 to the second arrest on 11th June, 1998 which was a period of four years and four months. 
	Taken as a whole, the trial Judge regarded this period as one of inordinate delay with considerable periods of inactivity and others of unduly slow activity rendering the delay inordinate.  In respect of some of these delays no particular explanation had been forthcoming.
	Kelly J. reiterates the applicable law on the question of delay in criminal prosecutions in DO'R -v- Director of Public Prosecutions [1997] 2 IR 273.
	However, in all of these cases there is no admission of the facts underlying the charges and no consequential absence of prejudice in relation to the establishment of relevant facts.  
	Moreover, in the present case the complaint was made within a period of days rather than of years.
	Indeed, where there are subsequent delays these have been explained, in part, by the absence of the Applicant from the jurisdiction and the complexities arising out of the proposed extradition proceedings.  In addition, certain delays were for the benefit of the Applicant insofar as his educational course was concerned.
	This is not a case where there has been inordinate delay or inexcusable delay.
	In these circumstances this application is dismissed.

The following cases were opened to me on behalf of the parties:-

The State (O’Connell) -v- Fawsitt, (1986) I.R. 362
D. -v- D.P.P. (1994) 2 I.R. 465
D.P.P. -v- Byrne (1994) 2 I.R. 236
D. -v- D.P.P. (1997) 3 I.R. 140 
C. -v- D.P.P. (unreported) Supreme Court, 28th May, 1999 
McKenna -v- Presiding Judge of the Dublin Circuit Criminal Court (unreported) 
The State (Healy) -v- Donoghue, (1976) I.R. 325 
Keely -v- Moriarty & D.P.P., unreported judgment delivered on 7th October, 1997, Quirke J.
Devanney -v- D.P.P. 
P.P. -v- D.P.P. (unreported) 5th October, 1999, Geoghegan J.