A High Court judge has refused to stop a prosecution in which it is alleged a 15-year-old boy defiled and exploited a 12-year-old girl.
It is alleged the accused says the girl told him she was 15 and that she looked older than her actual age when they met for the first time in May 2021 following the exchange of Snapchat photos and messages.
It is alleged that he claims they had consensual sexual intercourse in a field near the town they were in, and he made a number of videos on his phone of their sexual encounter.
On their return to the town centre, they were intercepted by the girl's relatives who had been concerned as to her whereabouts.
It is also alleged he subsequently sent a copy of the video recordings to one of her relatives in an attempt to corroborate his assertion that the sexual intercourse had been consensual.
Gardaí were alerted and carried out an investigation, including seizing his mobile phone. She was examined by the paediatric sexual assault unit the following day.
The DPP directed he be charged in June 2023, and he turned 18 in September that year.
He then brought a judicial review challenge seeking to halt his prosecution.
His grounds included that the delay in charging him meant that he had "aged out" and no longer got the benefit at his trial of a right to anonymity, a mandatory probation report, and favourable sentencing principles on the basis that he was a child.
He also alleged it was unfair of the DPP to charge him with defilement of a child under 17 in circumstances where it is said he would have been able to avail of a “reasonable mistake” defence had he been charged with the distinct offence of defilement of a child under 15.
It was further argued there had been a breach of his constitutional rights including in relation to the "close-in-age" defence or what is sometimes called the "Romeo and Juliet defence.
The DPP and the State opposed the challenge.
Mr Justice Garrett Simons refused to grant an order halting the prosecution.
He said the lapse of two years and two months between the date of the complaint and the date of charge represented, in the absence of any extenuating circumstances, a failure to comply with the constitutional imperative of reasonable expedition in the investigation and prosecution of offences alleged to have been committed by a child, he said.
However, he said, case law indicates that the existence of blameworthy prosecutorial delay will not automatically result in the prohibition of a criminal trial.
Rather, something more has to be put in the balance to outweigh the public interest in the prosecution of serious criminal offences.
What that may be will depend upon the facts and circumstances of any given case, including the length of the delay itself, the age of the accused at the time of the alleged offences and any prejudice caused to the conduct of the defence, among other factors.
Here, he said, the only prejudice which has been established by the accused is the potential loss of the opportunity to avail of the reporting restrictions provided under the Children Act 2001.
It is unlikely that he would have suffered any actual prejudice in this regard in circumstances where the criminal prosecution is subject, independently, to reporting restrictions for certain sexual offences anyway, he said.
However, rather than granting an order prohibiting prosecution, he directed that no report shall be published or broadcast which reveals the identity of either the accused or the complainant.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/ or visit Rape Crisis Help.
