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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosections v D.K. (Approved) [2024] IECA 230 (30 July 2024) URL: http://www.bailii.org/ie/cases/IECA/2024/2024IECA230.html Cite as: [2024] IECA 230 |
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Approved No Redaction Needed
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THE COURT OF APPEAL
CIVIL
Record No: 2023/259
Kennedy J. Neutral Citation Number [2024] IECA 230
Burns J.
MacGrath J.
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
V
D.K.
RESPONDENT/APPLICANT
JUDGMENT OF Ms. Justice Isobel Kennedy delivered on the 30th day of July 2024
1. This is an appeal by the Director of Public Prosecutions from the order of the High Court prohibiting the prosecution of the respondent on a charge of money laundering contrary to ss. 7(1)(a)(ii), 7(1)(b) and 7(3) of the Criminal Justice (Money Laundering & Terrorist Financing) Act, 2010, on grounds of delay.
Chronology
2. The offending is alleged to have occurred on a date between the 22nd April 2019 and the 1st May 2019, when the respondent was 16 years and 2 months old.
3. The respondent held a bank account with AIB Bank, the phone number attached to the account was that of his mother. It is said that in or around the 16th April 2019, the respondent connected on social media with an account by the name of 'MoneyMake.' The person behind this account messaged the respondent and sought from him his account details in order to lodge money into the account. It was indicated to the respondent that he would receive 30% of the monies lodged into the account, in exchange for withdrawing the money from post offices. Two weeks later, approximately €6,800 was lodged into the respondent's account.
4. On the 30th April 2019, the respondent's bank account was frozen. On the 1st May 2019, the respondent and his mother attended the Garda Station and informed Garda Curry of unusual activity occurring on the respondent's bank account. The respondent made certain admissions.
5. The respondent attained his majority on the 1st February 2021. On the 6th October 2021, he was charged. He applied by way of judicial review for, inter alia, an injunction restraining his continued prosecution on the single charge on the ground of delay. Leave having been granted, the matter came for hearing before the High Court.
6. The High Court (Barr J) was satisfied that there had been culpable prosecutorial delay and that as a consequence, the respondent had suffered significant prejudice because the matter had not been dealt with while he was still a minor. In conducting the balancing test, the High Court judge was satisfied that the public interest in the prosecution of the offence was outweighed by the prejudice to the respondent. The High Court judge granted the injunction sought. This decision has now been appealed by the Director. The focus of the appeal rests not with the High Court identifying culpable prosecutorial delay, but it is said that the learned judge erred in the calculation of the periods of blameworthy prosecutorial delay, and therefore, the requisite balancing of rights was not properly conducted. Moreover, it is contended that the judge erred in determining that the loss of the protections afforded to minors under the Children Act, 2001 constituted significant prejudice.
7. In order to avoid any confusion where the original applicant was successful, I propose to refer to the appellant as 'the Director.'
8. To properly scrutinise the issues, it is necessary to examine the sequence of events in some detail. The grounds of opposition filed by the legal team on behalf of the respondent accept that the chronology as outlined in the judgment is correct and so I, in this judgment, operate on that basis.
Chronology - The Period Prior to the Return for Trial
9. I have set out relevant detail regarding the chronology of events above. Following the respondent attending the Garda Station on the 1st May 2019, the gardaí, on the 2nd May 2019, obtained an order pursuant to s. 63 of the Criminal Justice Act, 1994 directing disclosure of the respondent's bank account details. On the 3rd May 2019, the respondent's phone was furnished for technical examination and the device download was completed on the 7th June 2019.
10. On the 30th July 2019, enquires were made of the bank by way of disclosure application and on the 9th September 2019, documentation was received.
11. On the 21st October 2019, Garda Curry sought assistance from a detective familiar with fraud investigations and on the 23rd October 2019, Detective Garda Whelan was assigned to the investigation. On the 6th December 2019, D/G Whelan made further enquiries of AIB who responded with further information on the 23rd December 2019.
12. The High Court judge carefully analysed the conduct of the investigation. He accepted that up to 23rd December 2019 the gardaí acted promptly in inter alia, obtaining the disclosure order and examining the respondent's phone. He also accepted that the request for assistance by Garda Curry was made and responded to, and that the bank furnished the information sought promptly. The judge found:-
"thus, the court is satisfied that in 2019 there was no period of culpable prosecutorial delay."
13. In his affidavit, Garda Curry averred that from January 2020 to March 2020, he was involved in a new management system in his division and that from mid-March 2020 until July 2020, all investigations were paused due to the onset of the pandemic.
14. By early January 2020, all evidence was gathered, and a trained fraud investigator reviewed the file.
15. The next significant development did not occur until the 15th July 2020 when the respondent was arrested and interviewed. He made further admissions.
16. While the High Court judge found that there was a period of delay from January 2020 until the 15th July 2020; the date of the respondent's arrest, he accepted that the onset of the Covid 19 pandemic provided a reasonable explanation for the period of inactivity from mid-March 2020 until the 15th July 2020. However, he was not satisfied that Garda Curry's explanation for the inactivity between January to mid-March 2020 provided an explanation for the delay during that period.
17. In the result, the learned judge did not accept that the explanation proffered that the roll out of the new management system excused inactivity during the first 3 months of 2020, but he did accept that the onset of the Covid 19 pandemic provided a reasonable explanation for the period of inactivity between mid-March 2020 and the 15th July 2020.
18. The next important development occurred on the 23rd July 2020, when a youth referral file was created. On the 31st July 2020, a skeletal file was requested by the National Juvenile Office (hereafter 'NJO'). This was furnished on the 20th August 2020.
19. I note that no explanation was offered for the delay in furnishing the skeletal file from the 31st July 2020 to the 20th August 2020. Nor is there any explanation for the lapse in time from the 20th August 2020 to an unknown date in February 2021; a period of some 5 months.
20. On the 1st February 2021, the respondent attained his majority.
21. In February 2021, the NJO requested that recommendations be added to the file, which were submitted on the 4th March 2021. The respondent was deemed unsuitable for inclusion in the Garda Youth Diversion Programme (hereafter 'GYDP') on the 15th March 2021.
22. The High Court judge found that there was a period of delay from the 23rd July 2020 to the 15th March 2021. He was not satisfied that there was any, or any adequate explanation offered for the delay in considering the respondent for inclusion in the GYDP in that period.
23. Following a detailed analysis of the relevant jurisprudence, including, inter alia, Cash v DPP [2017] IEHC 234; Wilde v DPP [2020] IEHC 385; Donoghue v DPP [2014] 2 IR 762; Daly v DPP [2015] IEHC 405 and Furlong v DPP [2022] IECA 85, the judge properly conducted a two-stage test in his consideration. First, he assessed whether there had been culpable prosecutorial delay and second, he conducted the balancing exercise.
24. In that respect, the judge considered the relevant period from the date of the alleged offence to the date when the respondent attained his majority. He acknowledged that there is a special duty on the authorities to expedite investigations involving minors, and also acknowledged that the gardaí cannot be expected to set other matters to one side and give unrealistic priority to investigations of this type. It is so, as recognised by the High Court, that the age of the minor at the time of the alleged offence is relevant in that the closer an individual is to majority, the less time is available to the gardaí to conclude their investigations so as to enable a minor to be tried prior to attaining majority.
25. I agree with the learned judge in his careful analysis of the period ending in December 2019. While it could be said that the investigation was rendered less complex by the admissions made by the respondent, nonetheless, the matters averred to clearly required attention and were addressed promptly. However, it seems that the investigation must have been all but completed at that point and indeed a perusal of the book of evidence would suggest this is so. Moreover, in the chronology of events contained in Garda Curry's affidavit, it is stated that in January 2020, all evidence was gathered.
26. Furthermore, I agree with the High Court judge that the onset of the pandemic provided a reasonable explanation for the inactivity between Mid -March and the 15th July 2020.
27. Nor do I disagree with the judge's finding that no proper explanation was offered for the inactivity during the period between the 1st January 2020 and mid-March 2020.
28. However, where the High Court judge found that there were two periods of culpable prosecutorial delay, the calculation of those periods comes to 9 months rather than 1 year and 8 months.
29. It seems common case that on the 16th May 2021, the file was submitted to the Director, further information was sought and was received by the Director on the 4th July 2021 and a direction to prosecute issued on the 10th September 2021.
30. On the 6th October 2021, the respondent was charged. The Director directed summary disposal. On the 14th October 2021, summary jurisdiction was refused.
31. On the 25th November 2021, the respondent was returned for trial.
The High Court
32. The High Court judge was of the view that while the investigation of offences connected to money laundering can be more complex than the average case, this was not such a case as the respondent had, inter alia made admissions. The court found culpable prosecutorial delay of 20 months from the date of the alleged offence to the date when the respondent attained his majority. The judge was of the opinion that while money laundering is a serious offence, this was not so in the circumstances of the case regarding the respondent. He concluded that the balance lay in permitting the application when he considered that the respondent was deprived of the procedural benefits under the 2001 Act, due to the excessive delay.
33. In conducting the required balancing exercise, the judge identified the loss of the right of anonymity as a significant prejudice. He held that were the respondent convicted of the money laundering offence and were that to be reported on the internet, it is highly likely that he would find it difficult to obtain employment in the retail or hospitality sectors and that this would be a significant prejudice to a young person.
34. The judge also noted the loss to the respondent of the right to make a s. 75 application. The relevant portion of s.75 of the 2001 Act provides:-
"75.—(1) Subject to subsection (3), the Court may deal summarily with a child charged with any indictable offence,[....], unless the Court is of opinion that the offence does not constitute a minor offence fit to be tried summarily or, where the child wishes to plead guilty, to be dealt with summarily."
The section enables the District Court judge to exercise their discretion to deal summarily with a child charged with any indictable offence pursuant to a s. 75 application.
However, the High Court judge in the present case found that on the balance of probabilities, any s. 75 application that would have been made by the respondent would probably have been unsuccessful so this could not amount to a significant prejudice.
35. He further identified the loss to the respondent of the mandatory nature of the procedural benefits provided under the 2001 Act for the sentencing of minors, such as obtaining a probation report and having regard to the age and maturity of the person at the time that they committed the offence when imposing sentence.
The Appeal - Submissions
The Director
36. The Director contends that the learned High Court judge fell into error in the calculation of the periods of culpable prosecutorial delay. While there was some debate on the issue, it is not contended that there was no culpable prosecutorial delay, simply that the delay was not that as calculated by the High Court Judge. In addition, the Director argues that the loss of the protections under the 2001 Act does not constitute significant prejudice sufficient to outweigh the public interest in prosecuting serious offences.
37. The Director submits that the overall time period of 20 months is reduced by the periods for which explanation was accepted by the High Court judge, thus leaving a delay of seven months, to be further reduced by virtue of the fact that the judge gave no allowance for the referral of the respondent to the Garda Youth Diversion Programme. Ref: DOE v DPP [2024] IEHC 112. It is submitted that in MS v DPP [2018] IEHC 285 and Kinsella v DPP [2021] IEHC 759, a period of six weeks was allowed for this to take place. Allowing for that period, the Director asserts that the total delay is that of approximately five and a half months.
38. The Director submits that in Furlong and DPP v LE [2020] IECA 101, this Court recognised that the loss of opportunity to assert the right to anonymity put the respondent at a significant disadvantage, but noted that this had to be balanced against the seriousness of the case and that this resulted in a determination that the prosecution should proceed in both cases.
39. In respect of the seriousness of money laundering offences, the Director relies on the following extract from DPP v Carew [2019] IECA 77:-
"...facilitating the commission of further criminal offences, money laundering is an essential component of a criminal organisation's capacity to perpetuate the carrying out of serious criminal activities. The potential public harm caused by money laundering is heightened in the case of serious organised crime such as the drugs trade. Sight must not be lost of the fact that for money laundering to take place there must be a predicate offence or offences, since the money being laundered is the proceeds of criminal conduct."
40. The Director emphasises that the recent Superior Court jurisprudence in this area indicates that a sentencing judge will consider the age and maturity of the offender even absent the protections of the 2001 Act. Ref: DPP v JH [2017] IECA 206, AB v DPP (Unreported, Court of Appeal, 21st January 2020) and DPP v AO'F [2022] IECA 122.
The Respondent
41. The respondent contends that the judgment of the High Court is clear, and that the Director has not provided any real explanation for the delay.
42. In respect of the period that elapsed while eligibility for the Garda Youth Diversion Programme was being assessed, it is submitted that there was no reason given as to why he could not have been considered for admission to the programme in July 2019. Thereafter, it is submitted, another seven months elapsed before charge. It is asserted that the periods of delay and their cumulative effect constitute blameworthy prosecutorial delay for which the Director has provided little to no explanation.
43. The protections under the 2001 Act are outlined as including, inter alia, the right to make submissions on the issue of jurisdiction under s. 75, the right to anonymity, the requirement to be accompanied in court by a parent or guardian and the stipulation that a court may take into consideration as mitigating factors, a child's age and level of maturity in determining penalty.
44. In particular, it is emphasised that had there been a speedy trial there would have been no publicity and the respondent's conviction might ultimately have become spent. However, if convicted as an adult, there is the potential for publicity of his conviction which is permanently available online and will follow him for life.
45. It is submitted that the alleged offence is at the lowest level of offending of this kind.
46. It is acknowledged that when sentencing an adult, regard must be had to the age of the offender at the time of the offence and there is a discretion regarding probation reports, however it is submitted that the 2001 Act provides for an entirely different legislative architecture for the sentencing of children.
Discussion
47. I agree with the learned judge that the investigation was pursued promptly until the end of December 2019 and that the onset of the Covid pandemic in mid-March 2020 and the restrictions imposed paused the investigation until July 2020. I do not take the appropriate date as being the 23rd July 2020, but that of the 15th July 2020, the date the respondent was arrested, as the end date of that period.
48. Those periods for which an explanation was offered mean that there are two periods of delay; 1st January 2020 until mid-March 2020; approximately 2 ½ months; and from the 15th July 2020 until the 1st February 2021, when the respondent attained his majority, that being a period of 6 ½ months.
49. I would take this opportunity to repeat what has been observed in previous cases of this kind; one would like to see a greater awareness on the part of the authorities when an accused is a juvenile. Every effort should be made where practicable to ensure that the matter comes to trial before the accused attains majority. I appreciate that this is not always possible, sometimes the time frame will simply not permit of this and sometimes investigations may be difficult and complex.
50. From January 2020 until 1st February 2021, the authorities had 13 months before the respondent attained his majority. Four months were lost due to Covid-19, but had the file been submitted to the NJO early in 2020, notwithstanding the 4-month hiatus due to the pandemic, it is likely the matter would have come to trial prior to the respondent turning 18 years.
51. The delay from the time the youth referral file was created and the date the respondent was deemed unsuitable is considerable, a period of 7 months and 3 weeks. However, the relevant date for the purpose of this application is the date when the respondent attained his majority.
52. It is important that the authorities are conscious of, and alert to, the proximity of an accused's majority and to act within that time frame, where reasonably possible. I acknowledge it is not practical or indeed fair to other investigations, that gardaí should put other matters to one side and focus on cases such as these and the same can be said for processing cases within the GYDP.
53. However, no explanation has been offered as to why there was a delay in furnishing the file to the NJO after the respondent met with the gardaí on the 15th July 2020 and there is no evidence as to what transpired during the period from the 20th August 2020, when the file was sent to the NJO and the 1st February 2021, when the respondent turned 18 years old.
54. A referral to the NJO ordinarily takes place on completion of the investigation file. The investigation was all but complete by the end of December 2019; and fully complete by January 2020. The referral was created on the 23rd July 2020. The consideration of a referral by the NJO will take some time and there must be an allowance for that by a court when assessing blameworthy delay. Similarly, time is necessary for the Director to consider the file and a reasonable period must be allowed to enable the Director to issue directions.
55. Notwithstanding the deduction afforded to those two factors, when I look at this case in the round, I agree with the High Court judge that there was culpable prosecutorial delay. However, I do believe the judge erred in his calculation of the overall time frame.
56. It seems to me that the period of prosecutorial delay is that of 9 months rather than 20 months. This incorporates the first 2 ½ months of 2020, and the 6 ½ month unexplained delay from the date of arrest in July 2020 and the respondent's 18th birthday. Factoring in an allowance for processing within the NJO and a consideration of the file by the Director, the period of culpable prosecutorial delay, is that of the order of 6 ½ months.
The Consequences of Delay
57. That of course is not the end of the matter. Where there is culpable prosecutorial delay, the court must conduct a balancing exercise between the public interest in having a serious charge prosecuted and the prejudice to an accused and whether something in addition to the delay is present which outweighs the public interest in prosecuting a serious offence.
58. Regard must be had in the assessment of where the balance lies to the age of the respondent at the time of the offence alleged, the seriousness of the alleged offence, the prejudice contended and any other factor of relevance. There are many cases, where an offence is committed by a minor, and notwithstanding the attainment of majority by the time of trial, the public interest in prosecuting serious offences outweighs any prejudice.
59. In terms of the prejudice here alleged, it is said that the respondent has lost the advantages which would have been available to him had he been prosecuted as a minor. These include his right to anonymity provided for by s. 93 of the 2001 Act, as substituted by s. 139 of the 2006 Criminal Justice Act and reporting restrictions.
60. Section 258 of the 2001 Act provides that the criminal record of a minor will be expunged after a period of 3 years where the offence was committed as a minor, however, given social media, internet searches etc., this may prove of little comfort where a report of a post majority conviction of a 16-year-old may at the time of the offending, remain online permanently with the residual effect of potentially jeopardising future employment. This is particularly apposite in instances of fraudulent activity and so it behoves the authorities to move swiftly to avoid such prejudice. The benefit of a person's record being expunged is severely curtailed, if not rendered futile if a conviction is publicised and publicised permanently. I take the same view as the High Court judge that the loss of anonymity and reporting restrictions amounts to a significant prejudice.
61. The respondent has also lost the benefit of s. 96 of the 2001 Act; that detention is a last resort, and the provision of a mandatory probation and welfare report. While these are not the most weighty of factors, nevertheless they must be afforded some consideration as part of the overall prejudice when conducting the balancing test. For me the most significant prejudice is that of the loss of anonymity and reporting restrictions and the consequential adverse impact on a young person's employment and life prospects.
62. There is a special duty on the State authorities to move swiftly when dealing with young offenders, this is not only to benefit a child offender, but society as a whole, to seek to ensure that, where appropriate, the rehabilitation of a young offender. Notwithstanding s. 258 of the 2001 Act; which provides for the expungement of criminal records for offences committed before majority once certain conditions are met, the fact that a trial may be reported and that details remain permanently online, diminishes the respondent's prospects of employment and arguably his contribution to society as a law-abiding citizen. Whereas if the matter had been dealt with before he turned 18 and there was a real prospect that it could have been, then no publicity would have occurred.
63. Section 75 of the Act permits application to be made to seek to have the trial of an offence disposed of on a summary basis at the discretion of the District Judge. Summary trial was refused in this case, albeit at a time when the respondent was 19 years old. While this court cannot determine whether a similar outcome would have occurred had such application been made before the respondent reached his majority, it is not unreasonable to consider that, given the approach adopted by the Director, that such outcome was more, rather than less likely. Had jurisdiction been accepted, the range of options open to a judge would have been significantly fewer than those available in the Circuit Court on indictment.
64. In my opinion, the loss of anonymity and the loss of reporting restrictions in the context of this type of offence and with the potential adverse consequences of those factors into the future amount to significant prejudice. That is not determinative however, in that those factors must be weighed in the balance against the seriousness of the offence alleged.
65. There is no doubt that money laundering is a serious offence. This is an important consideration. Further, while a court must take care to ensure that it does not engage in a qualitative assessment of alleged culpability, I nevertheless accept that the circumstances in which the offending is alleged to have taken place must also be considered when conducting the balancing exercise.
66. I stress that money laundering offences are by their nature, serious offences, but it cannot be gainsaid that this offence must rank low on the scale of gravity. This was a 16-year-old youth who allowed a bank account which was in his own name to be used for dishonest purposes for which he was promised payment. He received no payment for his role. His mother was the authorised phone number on the account. It is likely that a court would consider him utterly naïve and a person of whom advantage was taken.
67. I am satisfied that it was not a complex investigation While many such investigations of this nature are complex, this does not appear to be one of them.
Conclusion
68. It is clear that the special duty owed by the State authorities to move with expedition to ensure a speedy trial of a young person does not in and of itself result in the exceptional measure of prohibiting a trial. More is required to counter balance the important public interest in prosecuting offences. Where prosecutorial delay has been established, the assessment of balancing factors will be heavily fact dependent, requiring each case to be considered on its own facts, taking into account, inter alia, the criteria referred to by Geoghegan J. in Donoghue.
69. The respondent was 16 years and 2 months old at the date of the commission of the alleged offence, admissions were made immediately and the investigation into the circumstances of the offending was effectively concluded by December 2019. While accepting that, thereafter, periods of delay occurred which might reasonably be excused, the court concludes that the respondent could and should have been prosecuted within time, that is before reaching 18 years and thus having the benefits and safeguards under the Children Act, 2001, open to him.
70. The High Court judge properly identified the prejudicial factors flowing as a consequence of the delay with the potential residual and long-lasting adverse consequences for the respondent.
71. Accordingly, I find that the High Court judge was correct in his conclusion that there was culpable prosecutorial delay. Although, I find the culpable delay to be of a lesser order, I am satisfied that the judge correctly balanced the competing interests in restraining the further prosecution of the respondent.
72. Therefore, I would dismiss the appeal.