The High Court has refused to stop the trials of three young men who face charges arising out of the alleged sexual assault of a teenage girl when they were all on a break during school exams.
The defendants, who themselves were all teenagers at the time but are now over 18, claimed a lengthy delay in prosecuting them meant they have lost certain entitlements to be tried as children, including the chance of being dealt with in the District Court where penalties are lower, and the right to anonymity.
Two of them are charged with sexual assault while the third faces a charge of false imprisonment during the incident.
Mr Justice Garrett Simons refused their application to restrain their prosecution but said they were entitled to an order that no report shall be published or broadcast identifying them, the complainant or two others who are also charged but did not bring legal challenges.
The judge found there had been blameworthy prosecutorial delay in the investigation and prosecution of the offences alleged against the three. There was also an absence of any proper explanation for the delay, he said.
However, the judge noted that case law indicates that the existence of blameworthy prosecutorial delay does not automatically result in the prohibition of a criminal trial.
Something more had to be put in the balance to outweigh the public interest in the prosecution of serious criminal offences and certain factors had to be considered, including the length of delay itself and the age of the accused at the time the alleged offences occurred, among others, he said.
Reporting restrictions
In this case, the only prejudice which has been established by the three applicants was the potential loss of the opportunity to avail of the reporting restrictions under the Children Act 2001, Mr Justice Simons said.
The risk of potential prejudice can be eliminated by the High Court making a direction that the criminal prosecution is to be subject to ad hoc reporting restrictions, he said, making such an order.
Earlier, the judge said the alleged incident occurred in June 2019, when the girl and the defendants had all been students at the same secondary school and were known to each other.
The girl alleged that, during a break between examinations that they were all sitting at the time, she had gone into an off-campus building and eight male students entered after her.
It is alleged that one of the three pulled down his trousers and underpants and others then told the girl to perform a sex act on him. The same boy touched her outside her clothing, while the second defendant touched her outside and inside her clothing, it is alleged.
She said she was prevented by two students, including the third defendant, from leaving by grabbing her waist and throwing her back in.
She alleges she was told she would not be allowed out until she agreed to French kiss one of the students and that she was coerced into doing so. She said she felt like "a monkey in a cage".
The incident ended when a number of female students approached the building as the lunchtime recess was coming to an end.
Complaint
She first made a complaint to gardaí eight months later, in February 2020, and she was interviewed in May 2020.
In August that year, the three were arrested and interviewed.
In December 2020, they were deemed unsuitable for the Juvenile Diversion Programme.
A file was submitted to the Director of Public Prosecutions (DPP) in July 2021, and in May 2022 they were charged, by which time they had all reached 18-years-old.
They brought High Court proceedings seeking to stop their trial, claiming that if the authorities pursued the investigation and charged them with reasonable expedition, the criminal proceedings would have been heard before they reached 18 and "aged out".
The DPP opposed the application.
Mr Justice Simons said that notwithstanding that a delay of two years and three months calls for explanation, the DPP had "signally failed to provide any adequate explanation".
It was not sufficient for the DPP to file a statement of opposition which set out an incomplete narrative grounded on pro forma affidavits, he said. Crucial information, such as the date on which directions were given to charge the applicants has been omitted, he said.
Throughout the DPP's statements of opposition, reference was made to factors which supposedly delayed the criminal investigation, including a reference to the Covid-19 pandemic.
However, the judge said, no attempt was made to relate "this generic concern to the circumstances of this specific criminal investigation".
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.
