Supreme Court of Ireland Decisions

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[2025] IESC 17

Supreme Court Record Nos. 2024/69, 2024/72 and 2024/73

O'Donnell C.J.

Dunne J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

Donnelly J.

BETWEEN:

DOE (NO 1), DOE (NO 2) and DOE (NO 3)

Applicants/Appellants

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Respondent

-and-

THE ATTORNEY GENERAL

Notice Party

-and-

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

Amicus Curiae

Judgment of Ms Justice Iseult O'Malley delivered the 9^th day of May 2025

Introduction

1.      In each of these three appeals, each party appeals against part of the order made in the High Court (Simons J. - see Doe v. Director of Public Prosecutions [2024] IEHC 112). The applicants appeal against the refusal of the High Court to restrain, on grounds of prejudicial delay, their further prosecution on charges relating to an alleged sexual assault against a young girl, while the Director of Public Prosecutions has cross-appealed in relation to an order of the High Court prohibiting the identification of the applicants. To avoid confusion, the individuals to whom Simons J. gave the pseudonym "Doe" will be referred to here as "the applicants" and the Director of Public Prosecutions will be referred to as "the Director".

2.      The issues in the appeal have their origins in the fact that each of the applicants was a child at the time of the alleged offence, at the time when the complainant identified them to the gardaí, and at the time when they were arrested and questioned, but was over 18 when charged and brought into the criminal justice process. The High Court has made a finding, unchallenged in these appeals, that there was unjustified delay on the part of the investigation and prosecution authorities, and that the delay amounted to a breach of the applicants' constitutional right to a trial with due expedition.

3.      The delay has had the effect that the provisions of the Children Act 2001 are now inapplicable to the applicants. If they are to be tried at this stage, they will be tried as adults. This means that they will not have the benefit of protective statutory provisions designed for children before the criminal courts, such as the statutorily guaranteed right not to be publicly identified in reports of the proceedings.

4.      The applicants' case is that the breach of their rights, and the resulting prejudice to them by reason of the loss of the statutory protections, means that they are entitled to an order prohibiting their further trial. The High Court did not accept that argument. It did, however, consider that the situation warranted an order, made pursuant to the inherent jurisdiction of the court, preventing the public identification of the applicants. As the leading authority on the power to make such an order is Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18, [2017] 2 IR 284 it will be referred to here as a Gilchrist order.

5.      In their appeal the applicants contend that the Gilchrist order is not a sufficient remedy and that they are entitled to prohibition. The primary issue in their appeals is, therefore, whether in the circumstances of the case, including the now-acknowledged breach of constitutional rights by gardaí and prosecution authorities, the further prosecution of the applicants should be prohibited. Within that broad issue there are a number of matters to be resolved.

6.      As well as the loss of the statutory anonymity, the applicants have argued that they have lost the opportunity to make a case to a District Judge, pursuant to s.75 of the Act, that their cases could properly be dealt with summarily in the District Court rather than on indictment. That procedure involves a decision by the Judge on the question whether the case is a "minor" one but does not, unlike most of the comparable procedures for cases involving adults, require the consent of the Director for summary disposal. The High Court considered that this could only be held to be a relevant prejudice if the applicants established, on the balance of probabilities, that a District Judge would have reached the conclusion that the cases were fit for summary disposal. It was further held that, in order to reach that conclusion, the applicants would have to show that the District Judge would have considered that the possibility of a sentence of over 12 months was positively excluded. The applicants argue that this was an erroneous analysis.

7.      The applicants contend that the High Court also erred in finding that they were not significantly prejudiced by the fact that ss.96 and 99 of the Act will no longer be applicable to them. Section 96 sets out the principles to which a court is bound to have regard when sentencing a child, including the stipulation that a sentence of detention should be considered only as a measure of last resort. Section 99 requires the court to order a probation report before, inter alia, imposing a sentence of detention. The purpose of such a report, under the section, is to assist the court in determining a suitable community sanction (if any).

8.      As a fall-back position, should the Court conclude that prohibition is not warranted, the applicants oppose the Director's appeal and defend the making of the Gilchrist order.

9.      The Director appealed against the Gilchrist order because she considered that it was necessary to bring an issue of such public importance to the appellate courts. The Attorney General has been joined as a notice party in the appeals, at the request of this Court. That being so, at this stage the Director's position is that it is primarily for the Attorney General to deal with the issue. If the Court concludes that a trial can only proceed on the basis that such an order is made, the Director would prefer that outcome to an order of prohibition, which she continues to oppose.

10.  The Attorney General, who was joined as a notice party, is concerned only with the making of the Gilchrist order and not with the question whether or not prohibition should be granted. He accepts that the courts have the jurisdiction to make an order of this nature in exceptional cases but contends that, having regard to the importance of the principle that justice should be administered in public, it was not justified in this case.

11.  The Irish Human Rights and Equality Commission has also been given liberty to intervene as amicus curiae. The Commission submits that the Gilchrist order was appropriate in a case of this nature and should not be seen as being available only in exceptional cases.

12.  These appeals were heard shortly after the hearings in People (DPP) v CC and People (DPP) v PB. As similar, although not identical, issues were raised in all of these cases the parties to each, at the request of the Court, furnished their submissions to all other parties to ensure awareness of the issues and arguments.

Prohibition/injunctive relief in delay cases involving children

13.  Before describing the evidence, the issues and the decision in the High Court it will be helpful to set out briefly the established principles relating to delay in cases involving children and the remedies of prohibition or injunction. The constitutional right to a trial with due expedition takes on particular importance where children are prosecuted. That right may be breached if there is blameworthy delay in bringing charges before the courts, whether the delay is caused by investigators or by the prosecution authorities. Decisions as to whether there has been delay, whether it is "blameworthy", and whether the right has been breached will depend entirely on the facts of the case.

14.  If there has been no delay, or if there has been delay but it is not, in the circumstances of the case, blameworthy, then the authorities will not be in breach of their duty and there will not have been a breach of the right to a speedy trial. Where, however, such a breach is established then a question may arise as to whether the appropriate remedy is to make an order preventing a trial from proceeding. In the particular context of offences alleged to have been committed by children, the defendant will not be required to go so far as to demonstrate that the delay has had the effect of making a fair trial impossible or unduly difficult, but they will have to show that it has caused them prejudice to the extent that they should not be put on trial.

15.  It should be noted, in this context, that under the terms of the Children Act 2001 a "child" is a person under the age of 18. In general, children under the age of 12 cannot be prosecuted for criminal behaviour (by way of exception, a child as young as 10 can be charged with rape or murder). The delay cases involve, therefore, a relatively short period of time in relation to which the question of delay and its effects must be considered. Since it is unlikely that delays of this kind will cause risks for the fairness of a trial (such as the loss of witnesses or evidence) the debate in cases such as this has almost invariably focussed on the fact that the individual concerned has "aged out" and has therefore lost the benefit of the protective regime created by the Children Act 2001.

16.  The leading authority since the coming into force of the Act of 2001 is the decision of this Court in Donoghue v. Director of Public Prosecutions [2014] 2 I.R. 762, [2014] IESC 56. The facts in that case were that Gardaí found heroin with a value of over €7,500 in the possession of a boy who was just a few days past his 16^th birthday. He made and signed admissions immediately. He was not charged until a year and four months later. He was only two months away from his 18^th birthday when a District Judge heard submissions under s.75 of the Act on the issue of summary disposal. The judge declined to accept jurisdiction and sent the matter forward to the Circuit Court, whereupon judicial review proceedings were initiated.  

17.  In the High Court, Birmingham J. found that there had been significant and culpable prosecutorial delay. He also found that the delay would not have prejudiced the defendant's fair trial rights, in the sense that it would not have affected his ability to contest the charge fully if that was his choice. In considering what the consequences should be, the judgment proceeded on the express basis that the case was one that would in all likelihood have featured a guilty plea.  

18.  The feature found to be significant was the fact that the applicant had lost the benefit of the provisions of the Children Act 2001. Of note, Birmingham J. referred to s.75, the procedure for determining the appropriateness of summary disposal, as being of great potential importance. He observed that if the s.75 hearing had taken place when the applicant was still 16 his chances of being dealt with summarily would have been significantly better.

19.  On appeal, this Court (in a judgment delivered by Dunne J.) agreed with the trial judge that there had been blameworthy prosecutorial delay. It was confirmed that State authorities owed a special duty to a child or young person over and above the normal duty of expedition to ensure a speedy trial. However, the Court held that blameworthy delay alone would not suffice to prohibit a trial. As Kearns J. had said in PM v Director of Public Prosecutions [2006] IESC 22, [2006] 3 IR 172, serious blameworthy delay was a factor to be put into the melting pot when the balancing exercise was being considered. Dunne J. said (at paragraph 52):

"There is no doubt that once there is a finding that blameworthy prosecutorial delay has occurred, a balancing exercise must be conducted to establish if there is by reason of the delay something additional to the delay itself to outweigh the public interest in the prosecution of serious offences. In the case of a child there may well be adverse consequences caused by a blameworthy prosecutorial delay which flow from the fact that the person facing trial is no longer a child. However, the facts and circumstances of each case will have to be considered carefully. The nature of the case may be such that notwithstanding the fact that a person who was a child at the time of the commission of the alleged offence may face trial as an adult, the public interest in having the matter brought to trial may be such as to require the trial to proceed. Thus, in a case involving a very serious charge, the fact that the person to be tried was a child at the time of the commission of the alleged offence and as a consequence of the delay will be tried as an adult, may not be sufficient to outweigh the public interest in having such a charge proceed to trial. In carrying out the balancing exercise, one could attach little or no weight to the fact that someone would be tried as an adult in respect of an offence alleged to have been committed whilst a child if the alleged offence occurred shortly before their 18^th birthday. Therefore, in any given case a balancing exercise has to carried out in which a number of factors will have to be put into the melting pot, including the length of delay itself, the age of the person to be tried at the time of the alleged offence, the seriousness of the charge, the complexity of the case, the nature of any prejudice relied on and any other relevant facts and circumstances. It is not enough to rely on the special duty on the State authorities to ensure a speedy trial of the child to prohibit a trial. An applicant must show something more as a consequence of the delay in order to prohibit the trial." (Emphasis added.)

20.  The judgment then referred to the features of the case before it that the High Court had found to be significant.

"The trial judge in the course of his judgment outlined a number of features that would have applied to Mr Donoghue had he been prosecuted expeditiously which were no longer applicable given that Mr Donoghue would be tried as an adult as opposed to a child. They included the loss of anonymity, the fact that s 96 of the Act (to the effect that a sentence of detention should only be used as a last resort) would no longer apply and the loss of the mandatory requirement to obtain a probation report in the circumstances set out in s 99 of the Act. As the trial judge said, these are matters of real significance. Having done so he commented:-

"Two years in the life of a 16 year old boy is a very significant period indeed. In a case which is going to be contested and which may end in acquittal, it is highly undesirable that a young person should have an allegation hanging over his or her head for such a protracted period. If the case results in a conviction or if there is a plea of guilty, then the focus of attention is on the capacity of the court to intervene effectively and promote the rehabilitation of the young offender. If two years or more is to be lost then the court's capacity to intervene effectively will be greatly reduced."

[54] It is difficult to disagree with the comments made by the trial judge above. It is appropriate to add that the special duty of expedition on the part of the State authorities in the case of offences alleged to have been committed by a child will be of benefit to the child offender but will also be of benefit to society as a whole if early intervention is effective in diverting the child away from crime. The potential benefit to the child offender and to society as a whole in diverting young people towards a crime free lifestyle will undoubtedly be diminished by delay.

[55] Mr Donoghue has demonstrated that the delay in this case has led to significant consequences for the manner in which he would be dealt with at trial. To paraphrase the words of Kearns J in  PM v Director of Public  Prosecutions [2006] IESC 22, [2006] 3 IR 172, he has put something more into the balance to outweigh the public interest in having serious charges proceed to trial."

21.  In conclusion, Dunne J. said that had the prosecution of the applicant proceeded in a timely manner he could and should have been prosecuted at a time when the provisions of the Children Act 2001 would have applied to him. The trial judge had correctly identified a number of adverse consequences that flowed from the delay. Accordingly, he had been correct in granting an injunction preventing further prosecution of the case.

22.  It should be noted that the Court considered that s.75 did not raise any issue of relevance in the case, since there had actually been a s.75 hearing and the resulting decision on jurisdiction had not been challenged. The Court did not disagree, however, with the statement in the High Court that it was of potential importance.

Factual background

23.  It is not necessary or desirable to set out in any great detail the events giving rise to the charges. They occurred on a date in June 2019 when the complainant had only just turned 16, while these three applicants were a few months younger. She alleges that they, along with some other boys, trapped her in an identified building and assaulted her. All of the persons involved were fellow school students and all knew each other. The incident came to an end when some other young girls came on the scene. In her complaint to the Gardaí the complainant described having felt like "a monkey in a cage". She named the persons who she said had assaulted her and gave an account of what had occurred.  

24.  It is alleged that two of the applicants (Doe No. 1 and Doe No. 2) sexually assaulted the complainant by touching her breasts, bottom and vagina (in some instances under her clothing) and forcing her to kiss. Doe No. 2 is alleged to have pulled down his clothing and exposed himself. These two are charged with the offence of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act 2001. (The Act of 1990 provided for a sentence of up to five years in respect of any sexual assault. The effect of the amendment is that where the victim of the offence was a child the maximum sentence is 14 years.) It is alleged that Doe No. 3 assisted in preventing the complainant from leaving. He is charged with false imprisonment contrary to s.15 of the Non-Fatal Offences Against the Person Act 1997, which provides for a maximum penalty of life imprisonment. In total, five males were charged. The other two have not taken part in the judicial review proceedings.

25.  The applicants were 16 when they were arrested and interviewed by gardaí a little over a year after the incident. However, they were not charged until each had reached his eighteenth birthday. As a result, it is common case that their trials, should they proceed, and any punishment in the event of conviction, stand to be dealt with under the law applicable to adults rather than under the provisions of the Children Act 2001 ("the Act of 2001" or "the Act").

Relevant dates

26.  Some months after the event in June 2019 the complainant told her mother that she had been assaulted. A complaint was made to the Gardaí in February 2020. She was interviewed in detail by specialist interviewers in early May 2020. The applicants were arrested and questioned in mid-August 2020. Referrals in each case were made to the Juvenile Liaison Office in September 2020, and that Office communicated to investigating gardaí its decision that they were not suitable for the Diversion Programme in December 2020. The files were submitted to the Director of Public Prosecutions in late July 2021, and the directions to charge the applicants were given in January 2022. They were not charged until May 2022. By then each of them had turned 18 - respectively, in March 2022, August 2021 and January 2022.

The High Court

27.  Simons J. held that there had been unexplained and culpable delay by the garda and prosecution authorities, and that the delay constituted a breach of the constitutional imperative of due expedition in the investigation and prosecution of offences alleged to have been committed by children. Various periods of time were unexplained by the affidavits sworn on behalf of the Director - specifically, the time between the making of the complaint and the specialist interview with the complainant, between that interview and the arrest of the applicants (which the trial judge found inexplicable, given that the complainant had been able to give the gardaí their names and addresses), the time taken by the referral to the Juvenile Liaison office, the time taken by the Director to give directions in relation to what was described as a "succinct" garda file, and the time then taken before the applicants were charged. Taking these last two periods together, the trial judge said that the lapse of an overall period of ten months between the submission of the garda file and the bringing of charges was entirely unreasonable in circumstances where the accused persons were approaching their eighteenth birthdays.

28.  On this aspect Simons J. concluded:

"Notwithstanding the undoubted sensitivity of this case, the lapse of three months two years between the date of complaint and the date of charge represents, in the absence of any proper explanation to the contrary, a failure to comply with the constitutional imperative of reasonable expedition in the investigation and prosecution of offences alleged to have been committed by children."

29.  Having found that there was blameworthy delay amounting to a breach of duty, Simons J. referred to the balancing test mandated by the judgment of this Court in Donoghue. In carrying out that exercise, he focussed on the various statutory protections that the applicants asserted they had lost as a result of the delay. He accepted that none of these protections was available to person who was aged over 18 when charged. That was because most of the procedural protections in the Act were intended to address the needs of a child engaged in the criminal process. The legislature considered that adults did not need such protections. He therefore saw the appropriate way to characterise the applicants' situation as being that they had lost, not a statutory benefit, but "an opportunity to assert procedural entitlements". The judgment then turned to the four specific matters raised by the applicants.

(i)                 Reporting restrictions

30.  Simons J. accepted the view of the parties that the reporting restrictions applicable to children under s.93 of the Act would lapse if the child turned 18 at any stage during the criminal justice process. Section 93 provides in relevant part:

"In relation to proceedings before any court concerning a child—

(a) no report which reveals the name, address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any such child shall be published or included in a broadcast or any other form of communication, and

(b) no still or moving picture of or including any such child or which is likely to lead to his or her identification shall be so published or included."

31.  It was noted that the offences with which the applicants were charged were of a kind that attracted public opprobrium, and that their reputations might be harmed even if they were acquitted. The loss of the opportunity to avail of the s.93 protection represented, as the Court of Appeal had said in People (Director of Public Prosecutions) v. L.E. [2020] IECA 101, a "significant disadvantage".

(ii)              Section 75

32.  Next, Simons J. considered the issue concerning the potential jurisdiction of the District Court under s. 75 of the Act. In relevant part, that section provides:

75.(1) Subject to subsection (3) the Court may deal summarily with a child charged with any indictable offence, other than an offence which is required to be tried in the Central Criminal Court or manslaughter, 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.

(2) In deciding whether to try or deal with a child summarily for an indictable offence, the Court shall also take account of –

(a) the age and level of maturity of the child concerned, and

(b) any other facts that it considers relevant.

(3) The Court shall not deal summarily with an indictable offence where the child, on being informed by the Court of his or her right to be tried by a jury, does not consent to the case being so dealt with.

33.  The consent of the Director of Public Prosecutions to summary disposal is not required under this procedure, as it would be in a case involving an adult.

34.  If the decision is to deal with the case summarily, the normal limit on the District Court's sentencing powers will apply. That means that the maximum custodial sentence which can be imposed in respect of one offence is 12 months. The applicants contrasted this with the sentence applicable after trial on indictment for the offences with which they are charged - as set out above, the maximum sentence that can be imposed on a person convicted of sexual assault on a child is 14 years, while false imprisonment carries a sentence of up to life imprisonment.

35.  Simons J. approached this issue by considering whether it was likely that the District Court would have found the offences fit to be tried summarily. In his view, the aggravating factors in relation to the sexual assault charges included the young age of the complainant, the involvement of more than one alleged assailant and the public humiliation of the complainant. In relation to the alleged false imprisonment, the aggravating features were its duration and its seeming purpose of facilitating an ongoing sexual assault. That was the context in which, as the judge saw it, the applicants would have had to satisfy the District Judge that the facts of the case were such that, "even taking the case at its height, the range of penalties which might realistically be imposed would exclude a custodial sentence of in excess of twelve months" (emphasis in the original).

36.  On the basis of the aggravating circumstances of the case, and in the absence of any evidence from the applicants as to what they would have put forward by way of mitigatory factors in a s.75 hearing, Simons J. found that the District Court judge could not realistically have ruled out the prospect of a court of trial considering the imposition of a sentence of more than 12 months. It might, in his view, have been different if there had been any evidence before him of an indication of an early plea, or if the High Court had been provided with any evidence as to the level of maturity or other personal circumstances of any of the applicants. In the absence of such evidence, he felt constrained to approach the case on the basis that they were no different to typical 15-year-olds.

37.  The judge concluded that he could not find, on the balance of probabilities, that the District Court would have been likely to have accepted jurisdiction. On the state of the evidence the offences could not properly have been characterised, in a preliminary hearing, as minor matters fit to be tried summarily.

38.  In the course of his analysis of this issue Simons J. referred to two other High Court decisions. In C.L. v Director of Public Prosecutions [2023] IEHC 331 Mulcahy J. had made a finding on the balance of probabilities that (on the facts of the case before him) the District Court would not have accepted jurisdiction on a charge of violent disorder. However, in F. v. Director of Public Prosecutions [2021] IEHC 326 Barr J. had taken a different approach.

39.  F. involved charges relating to an assault on a shop security guard resulting in injuries inflicted on a customer in the vicinity. In conducting the balancing exercise, in circumstances of culpable delay, Barr J. found that on the facts of the case the most significant prejudice to the applicant was the loss of the opportunity to have his case considered under s.75. Evidence had been put before the Court relating to admissions made by the applicant and to reports that were of some relevance to his mental state. His solicitor had deposed that, in his view, there was a strong likelihood that jurisdiction would have been accepted had the applicant been charged while still under 18. Barr J. was satisfied that there would have been "a reasonable prospect" that jurisdiction would have been accepted by the District Court. In his view the loss of that opportunity, combined with the loss of the right to anonymity, outweighed the public interest in prosecution.

40.  It may be noted here that while the Court of Appeal allowed an appeal by the Director (on the 4^th April 2022 - see F v Director of Public Prosecutions [2022] IECA 85), that was because it differed from Barr J. in its assessment of the applicant's contribution to the delay in the case. The Court commented that Barr J. was correct to conclude that if there had been a s.75 hearing in the case there would have been a "reasonable prospect" of the District Judge accepting jurisdiction (although it saw such an outcome as far from inevitable).

41.  The Court of Appeal judgment in F. may not have been cited to Simons J. In any event, he took the view that the applicants were required to show on the balance of probabilities that the District Judge would have been likely to accept jurisdiction.

(iii)            Sentencing principles

42.  The applicants argued that they had lost the benefit of s. 96(2) of the Act, which sets out the principles to be applied in sentencing children as follows:

"(2) Because it is desirable wherever possible—

(a)    to allow the education, training or employment of children to proceed without interruption,

(b)    to preserve and strengthen the relationship between children and their parents and other family members,

(c)    to foster the ability of families to develop their own means of dealing with offending by their children, and

(d)    to allow children reside in their own homes,

any penalty imposed on a child for an offence should cause as little interference as possible with the child's legitimate activities and pursuits, should take the form most likely to maintain and promote the development of the child and should take the least restrictive form that is appropriate in the circumstances; in particular, a period of detention should be imposed only as a measure of last resort."

43.  Section 96(3) provides that a sentencing court may take into account as mitigating factors the age and maturity of a child, unless the offence is one for which the penalty is fixed by law.

44.  Section 143 of the Act implements the "last resort" principle by providing that the court shall not make an order imposing a period of detention on a child unless it is satisfied that detention is the only suitable way of dealing with the child and, in the case of a child under the age of 16, that a place in a children detention school is available for him or her. Where a detention order is made, the court making the order must state its reasons for so doing in open court.

45.  Simons J. considered that this provision was of little practical relevance in the instant case. Even though the applicants would (if convicted) be over 18 when sentenced it would still be necessary for a sentencing judge to impose sentence on the basis that the offences had been committed by 15-year-olds. The maturity of the accused person at that age would be highly relevant to the assessment of culpability. In his view the case law of the Court of Appeal (with specific reference to A.B. v. Director of Public Prosecutions (unrep., Court of Appeal, 21^st January 2020) and Director of Public Prosecutions v J.H. [2017] IECA 206) did not suggest otherwise.

"Rather, the case law reflects the distinction between those sentencing principles which are unique to a convicted child and those which are also relevant to an adult who is to be sentenced in respect of offences committed while they were a child.  In the case of the former, it is necessary to consider the impact which detention would have on the development of the child, their relationship with their family and their educational development.  In the case of the latter, the fact that the offence was committed while a child will still be highly relevant. In the present case, in the event that any of the applicants were to be convicted—and it should be reiterated that they are presumed innocent—then the sentencing judge would be required to have regard to their age and maturity at the time of the events of June 2019.  In assessing maturity, the sentencing judge would be required to have regard to any educational, emotional or social difficulties suffered by that individual as a child which might have impaired their ability to appreciate the consequences of their actions."

(iv)             Mandatory Probation Report

46.  Under s.99 of the Act, a court may in any case seek a probation report before imposing sentence on a child. It is obliged to do so where it is of the opinion that the appropriate decision would be to impose a community sanction, detention, or detention and supervision. The stated purpose of such a report is to assist the court in determining a suitable community sanction (if any) and to provide such information as may be prescribed by regulation including any information requested by the court. (No regulations appear to have been made in this respect.)

47.  Simons J. did not consider this to be a matter of practical significance in the applicants' cases. A sentencing judge dealing with any of them would still be dealing with an offence committed by a child and would have discretion to order a report.

48.  Having found that the applicants had demonstrated potential prejudice in one respect only - the reporting restrictions - Simons J. embarked on the balancing exercise set out in Donoghue. This required the potential loss of the reporting restrictions to be weighed against the public interest in the prosecution of serious crimes. In his view, the particulars of the offences concerned in the case were such as to weigh heavily on both sides of the scales. There was a strong public interest in ensuring that allegations of sexual assault against a child were prosecuted. That public interest was reflected in the public opprobrium attached to such offences. In turn, that opprobrium had the practical consequence that the potential loss of reporting restrictions was all the more significant.

49.  Simons J. observed that in most of the cases to date, the balancing exercise had concluded with a finding that the seriousness of the offence outweighed the prejudice caused by the loss of the potential opportunity to avail of reporting restrictions. However, he considered that the instant case gave rise to different considerations. This was because there would, in his view, inevitably have to be reporting restrictions in the case, under the Criminal Law (Rape) Act 1981, because of the likelihood that identification of these applicants would identify the complainant.

50.  The prohibitions on identification of a complainant and of an accused person who has not been convicted, as set out, respectively, in ss. 7 and 8 of the Criminal Law (Rape) Act 1981, originally applied only to a trial in respect of a "rape offence". The definition of a "rape offence" did not include the offence of indecent assault (i.e. the offence now known as sexual assault). The charges against the appellants would not in fact have come within either section until certain amendments were made by the Criminal Law (Rape) (Amendment) Act 1990 and, more recently, the Criminal Law (Sexual Offences and Human Trafficking) Act 2024. The current position is that a person accused, but not convicted, of a sexual assault is entitled to a similar protection to that of a person accused, but not convicted, of a rape offence. In either case the person can be identified only if convicted, and, even then, cannot be identified if to do so would identify the complainant. However, in the latter circumstance it is possible that the complainant may choose to waive their right to anonymity with a view to permitting identification of the convicted person.

51.  Simons J. took the view that the likelihood of reporting restrictions in the case had the consequence that the loss of the opportunity to avail of the s.93 protections might not in fact cause any actual prejudice to the applicants, unless the complainant waived her right to anonymity. In those circumstances, he considered that he was not constrained by the normal binary choice in judicial review proceedings of this nature (i.e. to prohibit the trial or to permit it to go ahead without any reporting restrictions). It might be appropriate to adopt a middle way, whereby the potential prejudice to the adult accused would be mitigated by the court ensuring that mandatory reporting restrictions applied.

52.  The judge considered the possibility that the protection of reporting restrictions was available under some other statutory provision and concluded that it was not. While it had been suggested in one High Court judgment (M. MCD. v. Director of Public Prosecutions [2016] IEHC 210) that s.45(1) of the Courts (Supplemental Provisions) Act 1961 might provide a statutory basis for reporting restrictions, Simons J. had previously doubted that proposition in a judgment (L.E. v. Director of Public Prosecutions [2019] IEHC 471) that was subsequently approved by the Court of Appeal (in A.B.). (This Court has now held, in People (DPP) v. P.B. [2025] IESC 12, that s.45 of the Act of 1961 is inapplicable in this context.)

53.  Simons J. did not, however, consider that the absence of a statutory basis was the end of the issue. The key passage on this aspect is at paragraphs 84 to 86 of the judgment, where he said:

"84. The fact that there is no statutory basis for reporting restrictions which might be relied upon generally in respect of an "aged out" accused does not necessarily preclude the High Court, in the exercise of its judicial review jurisdiction, from imposing reporting restrictions in specific cases on an ad hoc basis.  This is subject to the caveat that any such encroachment upon the fundamental constitutional value that justice should be administered in public would have to be proportionate.  The High Court would appear to have jurisdiction, in an appropriate case, to impose reporting restrictions where necessary to vindicate the constitutional right to a trial with reasonable expedition.  It would seem to follow, as a corollary of the High Court having jurisdiction to prohibit the criminal prosecution entirely, that it should have jurisdiction to take the less drastic step of imposing a modification to the form in which the trial takes place.  The greater includes the lesser.  The High Court is exercising its inherent jurisdiction to vindicate an accused person's constitutional right to a trial with reasonable expedition.  This right is not unqualified: it must be balanced against other constitutional rights and values, including, relevantly, the public interest in the prosecution of serious criminal offences.  The High Court has ample powers to ensure that an apprehended breach of an accused person's right is vindicated.  In most instances where, having carried out the requisite balancing exercise, it has been established that a breach has occurred, the appropriate remedy will be an order prohibiting the criminal prosecution.  In the particular circumstances of the present case, the event giving rise to any potential breach can be fully remedied by taking the lesser step of imposing reporting restrictions.

85. Of course, the taking of such a step would only be justified where it does not involve a disproportionate interference with the principle that justice should be administered in public.  In this regard, weight must be attached to the legislative context and the nature of the reporting restrictions, if any, provided for under statute.  See Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18, [2017] 2 IR 284 (at paragraph 41):

"[...] Where the Oireachtas has not seen fit to legislate for the possibility of a hearing in camera, then the court should only exercise an inherent jurisdiction to depart from a full hearing in public where it is shown that the interests involved are particularly important, and the necessity is truly compelling."

86. It might be thought that to allow an adult-accused the benefit of reporting restrictions would cut against the legislative policy underlying section 93 of the Children Act 2001.  As against this, it is more disruptive to the legislative policy to prevent there being any criminal prosecution at all.  Moreover, there is other relevant legislation which allows for reporting restrictions in this type of case, namely, the Criminal Law (Rape) Act 1981." (Emphasis added.)

54.  In the "very particular" circumstances of the case, Simons J. held that the proper balance between the competing constitutional values was struck by directing that the criminal prosecution could proceed subject to reporting restrictions.  The effect of the blameworthy prosecutorial delay was that the applicants had lost the opportunity, which they would otherwise have had, of availing of the reporting restrictions under s.93 of the Act.  Any potential prejudice so occasioned was eliminated by the imposition by the High Court of ad hoc reporting restrictions.  This would, in the circumstances of the case, entail only a limited (if any) interference with the principles that justice should be administered in public, since there would be reporting restrictions anyway under the Act of 1981.

"It is correct to say that one consequence of the High Court directing that ad hoc reporting restrictions apply will be that the complainant will lose her statutory right to waive anonymity. This is a lesser loss than that which would otherwise arise were the High Court to make an order prohibiting the criminal prosecution outright.

In summary, therefore, the outcome of the balancing exercise is that the criminal prosecution should proceed but subject to a direction that ad hoc reporting restrictions are to apply."

Submissions in the appeal

55.  The three applicants are separately represented, and their submissions are not necessarily identical on all points. The following summary of submissions should be seen in this light, and any apparent conflicts are best seen as alternative arguments.

(i)                 Section 75

56.  As set out above s.75 provides that the District Court (sitting as the Children Court) may deal summarily with a child charged with any indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, "unless the Court is of the 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. In deciding whether to try or deal with a child summarily for an indictable offence, "the Court shall also take account of (a) the age and level of maturity of the child and (b) any other facts that it considers relevant".

57.  The point is made by the applicants that the language of subs.(1) ("unless the Court is of the opinion that the offence does not constitute a minor offence...") differs from that of other statutory provisions dealing with summary disposal of indictable offences. For example, under s. 12 of the Criminal law (Rape) Act 1981 as amended, the District Court has jurisdiction to deal with a charge of sexual assault if the judge is of opinion "that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily", the Director consents and the accused does not object. It is submitted by the applicants that this difference, and the fact that the Director has a veto on summary disposal in cases where the accused is an adult but not in the case of children, indicates an intention on the part of the Oireachtas that the District Court should lean in favour of accepting jurisdiction in the case of a child.

58.  The Director does not accept that the wording of the section creates any relevant distinction. She submits that the position is the same as it is in respect of an adult accused - under the Constitution, the District Court has jurisdiction to deal with minor offences only. It is accepted that the District Court would have to consider a child's age and level of maturity, for the purposes of s.75, but there was no evidence in this case of any "special or unique" circumstances. The Director stresses the nature of the factual allegations against the applicants and asserts that the offences could not have been found to be minor.

59.  The applicants accept that the burden of proof is on them, as applicants for judicial review relief, and that the standard of proof that they have to meet is the balance of probabilities. However, they emphasise that their argument is that they have lost the opportunity to make a case for summary disposal under s.75, whether by way of a guilty plea or otherwise. In that context, they make two main arguments.

60.  It is submitted that the trial judge erred in holding that the applicants were obliged to establish on the balance of probabilities that the District Court would have accepted jurisdiction. In this regard, reference is made to other categories of case where a court is asked to reach a conclusion in relation to a matter that necessarily involves some degree of speculation. So, for example, when determining whether or not the passage of time has had the effect of rendering a trial unfair, the court will consider whether or not the accused person has lost "a real possibility of an obviously useful line of defence" (Hardiman J. in SB v Director of Public Prosecutions [2006] IESC 67, Clarke C.J. in C.C. v. Director of Public Prosecutions [2019] IESC 94).

61.  Secondly, it is submitted that a s.75 decision involves consideration of the offence in the circumstances in which it was alleged to have been committed. The District Court attempts, on a preliminary basis, to estimate the effective penalty likely to be imposed in the event of conviction. This requires consideration of a range of factors and not merely the gravity of the offence. It is submitted that it is an error to suggest that the test is whether or not a sentence in excess of 12 months can be excluded.

62.  The applicants say that the obligation of the Court making a decision under s. 75, to take into account the age and level of maturity of the child, may refer to those features as of the date of the offence for the purpose of an assessment of gravity (as found by Simons J.). In that context, matters such as immaturity or peer pressure might well be relevant to the assessment. While no evidence had been adduced of particular personal features, it was clear that those accused of the offences were school children at the time.

63.  However, it is further submitted that the section also refers to the age and maturity of the accused as of the date of the s.75 hearing. The applicants say that, had the prosecution authorities fulfilled their duty in this case, they could have been about 16 at the time of such a hearing. Their age would have been a highly relevant factor under s.75, feeding into the assessment of whether or not the offence was a minor offence fit to be tried summarily. That is because the District Judge would have had to take account of the sentencing principles applicable to children, as set out in s.96.

64.  It is said to follow that the judge could be of the opinion that the offence is fit to be dealt with summarily in the case of a child, where a different opinion might be reached in the case of an adult. It is submitted that there is no authority for the view of the trial judge to the effect that the District Judge would, in order to accept jurisdiction, have to exclude the possibility of a sentence in excess of 12 months.

65.  The submissions made on behalf of Doe No. 3 stress the fact that he is charged with false imprisonment and not sexual assault. He asserts that, given that he was 15 at the time, it was not likely that a court would feel bound, or would have been likely, to impose a custodial sentence greater than 12 months. It is submitted that a sentencing court would have been more likely to have looked at issues such as the acknowledgment of wrongdoing, insight and subsequent behaviour. The Court would have been obliged to consider non-custodial options.

66.  The Director submits that the applicants have not engaged with the proposed evidence as to their actions on the day in question, and have failed to adduce any evidence such as was discussed in F. and C.L. (the cases where it was held that there would have been a reasonable prospect that jurisdiction would have been accepted by the District Court).

(ii)              Loss of favourable sentencing regime

67.  Section 96(2), outlining the general principles to be applied in the sentencing of a child, has been set out above. The varied range of orders that can be made are listed in s.98. Where a court is satisfied of the guilt of a child charged with an offence it may, "without prejudice to its general powers" and in accordance with this Part of the Act, reprimand the child or deal with the case by making one or more than one of the following orders:

a)      a conditional discharge order,

b)      an order that the child pay a fine or costs,

c)      an order that the parent or guardian be bound over,

d)      a compensation order,

e)      a parental supervision order,

f)       an order that the parent or guardian pay compensation,

g)      an order imposing a community sanction,

h)      an order (the making of which may be deferred pursuant to section 144) that the child be detained in a children detention school or children detention centre, including an order under section 155(1),

i)       a detention and supervision order.

68.  The applicants argue that it is not sufficient to say, as the trial judge did, that the sentencing court will, in any event, assess the culpability of an accused by reference to their age and maturity as of the date of the offence. Culpability must be assessed in every case, no matter what the age of the offender. The point, they say, is that the court is at large in respect of an adult but is constrained by the provisions of the Act in sentencing a child. They have lost the right to be treated differently to adults.

69.  The Director submits that it is a general principle of sentencing that no offender is incarcerated save as a last resort. A sentencing judge can consider all available options. Where a minor has aged out, their age at the time of the offence will be a central factor in the assessment of the appropriate sentence and custody will be imposed as a last resort.

(iii)            Mandatory probation report

70.  The applicants point out that the ordering of a probation report is discretionary in cases involving adults, and say that different judges can have differing attitudes to imposing burdens on a Probation Service that has finite resources.

71.  It is conceded by the applicants that the prejudice caused by this factor is less serious than the other matters they have raised. However, it is argued that it is something that should be considered as a prejudicial factor in the overall mix of factors, all of which are due to blameworthy delay.

72.  The Director submits that it is highly unlikely that a sentencing court would proceed in such a case without a probation report.

(iv)             Anonymity under s.93

73.  It is accepted by Doe No. 1 and Doe No. 2 that they would now, as a result of the amendments introduced in s.11 of the Criminal Law (Sexual Offences and Human Trafficking) Act of 2024, be entitled to anonymity in their own right as defendants in a trial on a charge of sexual assault. They are no longer dependent on a derived right based on the prohibition on identifying the complainant. However, their right to anonymity will be lost if they plead guilty or are convicted, unless the complainant wishes to maintain anonymity and the trial judge considers that identification of the accused could lead to her identification. This does not occur in the case of a child entitled to the protection of s.93 - the protection conferred by that section can endure indefinitely, no matter what the outcome of a trial and no matter what the view of any other person involved in the trial process. This factor, they say, is a matter of significant prejudice with potentially life-long adverse effects.

74.  The applicants point to the interaction between s.93 and s.158. The latter provides for the expunging from a person's record, in certain circumstances, of offences committed as a child. In Donoghue, the High Court (Birmingham J.) had observed that this was a matter of particular practical significance if the original conviction was not, and could not be, the subject of publicity. The applicants agree with Simons J.'s comment that the nature of modern media coverage means that any coverage of the trial will remain online indefinitely, but say that he erred in characterising this as merely "potential" prejudice.

75.  Doe No.3 emphasises the fact that he is not charged with a sexual offence. He has, therefore, only a derivative right to anonymity in the trial and will lose it if the co-accused plead guilty or are convicted. This could not happen if s.93 applied to him.

76.  In this appeal the applicants, the Attorney General and the Director agreed with each other that s.93 of the Act was intended to cover only those who are still children while engaged in the criminal justice process, and that it would cease to apply to a person who "aged out" before the completion of that process. This Court has, since the date on which submissions were heard in this case, delivered judgment in People (Director of Public Prosecutions) v P.B. [2025] IESC 12, in which it held that interpretation to be incorrect. The Court has, however, confirmed that the section has no application to persons who are aged 18 or over by the time of the commencement of criminal proceedings. There is, therefore, no doubt about the fact that the applicants have lost the benefit of the provision.

77.  The Director accepts that the loss of anonymity is a matter of prejudice but points to a number of High Court judgments in cases where it was held not to justify an order of prohibition. If it were to be considered a sufficiently prejudicial factor to justify such an order, without more, there would be no need to conduct the balancing exercise required by Donoghue.

(v)               The Gilchrist Order

78.  In Re R. [1989] I.R. 126 the High Court ordered that an application under s.205 of the Companies Act should be heard in camera and that none of the contents of the affidavits, exhibits, petitions, or pleadings should be disclosed to anyone not a party to the proceedings. On appeal, the majority of the Court held that one of the requirements essential to the administration of justice, enshrined in Article 34.1°, was that it be in public unless that requirement, by itself, operated to deny justice in the particular case. The specific exceptions to that principle were limited to cases "prescribed by law" and to cases where it was shown that publicity, by itself, would deny justice as between the parties. On the facts of the case, the majority found that while the hearing of the proceedings in public would involve the publication of information that would be seriously prejudicial to the legitimate interests of the company it had not been shown that it would impede the doing of justice as between the parties.

79.  Irish Times Ltd. v. Ireland ([1998] 1 IR 359) is also relevant to the question of the extent of the constitutional imperative to administer justice in public. A Circuit Court judge presiding over a criminal trial was concerned that inaccurate media coverage of the trial might lead to its abandonment and to further remands in custody for the accused. He made an order prohibiting contemporaneous reporting beyond some bare details about the fact that the trial was proceeding. Several media organisations took judicial review proceedings to quash the order.

80.  Five judgments were delivered in this Court. For present purposes the important point is their agreement on certain fundamental matters. Firstly, the fact that the trial could be attended by members of the public and by journalists did not make it a "public" trial if it could not be reported on. Secondly, the obligation under Article 34.1° to administer justice in public was part of the obligation to uphold the Constitution and the law –Keane J. referred to it as "an essential feature of a truly democratic state". The public had in general a right to know what was going on in the courts and was entitled to a fair and accurate account to that end. Thirdly, the right to be informed by the media was not, however, an absolute one and a trial judge had a jurisdiction at common law to prohibit reporting that would frustrate or render impractical the administration of justice. The right to a fair trial was also protected by the Constitution and was superior to any right derived from Article 34.1°. The test to be applied was whether there was a real risk of an unfair trial. The Court was unanimous in finding that the evidence did not meet that test.

81.  The context of the decision in Sunday Newspapers Limited v. Gilchrist ([2017] 2 IR 284) was an application by the Garda Commissioner for an order that the plaintiffs' defamation proceedings should be heard in camera. The plaintiffs were officers of the State's witness protection programme, and the concern expressed by the Commissioner related to perceived threats to the lives of officers and other members or employees of the Garda Síochána, or of persons in the programme. Further, the authorisation of the Commissioner was necessary in order to avoid the possibility of prosecution for disclosure of information contrary to the Official Secrets Act 1963 but she was not prepared to give her authorisation unless an in camera order was made.

82.  When the matter came before this Court the plaintiffs and the Commissioner relied upon the Irish Times case as demonstrating that there were exceptions to the general principle that justice must be administered in public. The defendants argued that the judgments in that case allowed an exception from trial in public only where it would not otherwise be possible to administer justice between the parties. It appears to have been agreed by the parties that the only options in the case were a hearing fully in public or a hearing in camera. In that context, O'Donnell J. (who gave the sole judgment) noted the limitations on the arguments as presented and said that the case might have benefited from notification to the Attorney General. He observed that the decision therefore was one which might require to be revisited in the context of further argument in a different case, where more nuanced possibilities might arise.

83.  Having discussed the authorities, the Court held that there was a continuing common law power to direct that a case be heard in camera, or to impose lesser measures such as reporting restrictions. Article 34.1 expressly contemplated circumstances in which the principle of trial in public could be departed from, insofar as provision could be made by way of legislation. However, the absence of any legislative measure in relation to a particular area meant that the court should only exercise an inherent jurisdiction to depart from a full hearing in public where it was shown that the interests involved were "particularly important", and the necessity was "truly compelling". Any departure from the principle of open justice under Article 34.1 must be exceptional, and must therefore be strictly construed and applied. There must be no other measure available that would be sufficient to protect the legitimate interest involved.  In a case where justice could not be done, or could not be done without damage to important constitutional values, it could be appropriate to provide for the possibility of a hearing other than in public. It was a matter for the court to decide whether any departure from the standard of a full trial in public was required, and if so, what measures were the minimum necessary.

84.  The conclusions reached were summarised as follows.

(i)                 "The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance.

(ii)              Article 34.1 itself recognises however that there may be exceptions to that fundamental rule;

(iii)            Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public;

(iv)             Any such exception may be provided for by statute but also under the common law power of the court to regulate its own proceedings;

(v)               Where an exception from the principle of hearing in public is sought to be justified by reference only to the common law power and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing. [In the instant case] that demanding test is capable of being met by the combination of the threat to the programme and the risk to lives of people in it or administering it. This is not a matter of speculation, but seems an unavoidable consequence of the existence of a witness protection programme.

(vi)             While if it can be shown the justice cannot be done unless a hearing is conducted other than in public, that will plainly justify the exception from the rule established by Article 34.1, but that is not the only criterion. Where constitutional interests and values of considerable weight may be damaged or destroyed by a hearing in public, it may be appropriate for the legislature to provide for the possibility of the hearing other than in public, (as it has done) and for the court to exercise that power in a particular case if satisfied that it is a case which presents those features which justify a hearing other than in public.

(vii)          The requirement of strict construction of any exception to the principle of trial in public means that a court must be satisfied that each departure from that general rule is no more than is required to protect the countervailing interest. It also means that court must be resolutely sceptical of any claim to depart from any aspect of a full hearing in public. Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome. In particular this will mean that even after concluding that case warrants a departure from that constitutional standard, the court must consider if any lesser steps are possible such as providing for witnesses not to be identified by name, or otherwise identified or for the provision of a redacted transcript for any portion of the hearing conducted in camera."

85.  In addressing the issue of the High Court's jurisdiction to make an order of this nature in the instant case, the Director has argued that the basis for making it was unclear, that there was no nexus between the right to a trial with due expedition and the right to anonymity and that the loss of s.93 restrictions did not affect any fair trial rights. It is emphasised by the Director that the judgment in Gilchrist envisages only "truly compelling" reasons as justifying the making of an order that detracts from the constitutional position that justice should be administered in public.

86.  The Director also raises the issue of the complainant's right to waive anonymity in the event of a conviction, saying that the trial judge gave no consideration to the fact that the order would deprive the complainant of that right.

87.  Since the Attorney General is now a notice party in the appeal, the Director's main concern is with opposing the applicants on the question of prohibition. If the Court is satisfied that it should exercise its inherent jurisdiction to grant some form of relief short of that, and that it has jurisdiction to make a Gilchrist order as an alternative to an order of prohibition, then the Director's view is that it would be in the public interest to do so.

88.  The applicants submit, for the purposes of the Director's cross-appeal, that the High Court had jurisdiction to make the order, and acted in accordance with the Gilchrist principles. The Court did not order an in camera hearing but provided only for a limited extension of reporting restrictions that would arise in any event.

89.  The applicants say that the only error made by the High Court in this respect was to find that an order of this nature was a sufficient remedy. They further say that if this Court were to hold that the order should not be made, that would have the effect of strengthening the case for prohibition.

90.  The Attorney General submits that while the inherent jurisdiction to make such an order in this type of case is available, the High Court did not establish the strict justification required by the Gilchrist criteria. Where the legislature has provided for reporting restrictions in relation to a defined category of persons, as it has in s.93 of the Children Act, the inherent jurisdiction should not lightly be used to sidestep the legislative intent that persons outside that category should benefit from the same restrictions.

91.  The Attorney General does not, however, see the terms of s.93 as precluding the use of the inherent jurisdiction. There remains a residual discretion, which exists as part of the general power of the courts to control their own processes, to depart from a full public hearing where it is shown that, in the terms used in Gilchrist, "the interests involved are particularly important, and the necessity is truly compelling". Thus, in principle the jurisdiction could be utilised on an exceptional basis to protect the interests of an aged-out defendant if, on a case-by-case basis, the threshold was met. It would have to be demonstrated that there would be a clear and serious breach of rights in the absence of such an order. It is submitted that in the instant case the order was made by the High Court, not to prevent the breach of a right, but only to dispose of the argument that there might be such a breach if the order was not made. (This submission, it must be noted, is based on a strongly-contested interpretation of the judgment.) At a minimum, the High Court would have to have found that the loss of anonymity was so prejudicial to the applicants that an order of prohibition would have to be made in the absence of a Gilchrist order. No such finding was expressly made. It is noted that in the majority of judicial reviews of this nature the courts have refused prohibition despite finding culpable delay.

92.  It is observed that the fact that there would in any event be reporting restrictions in this case seems to have been central to Simons J.'s reasoning in making the order. The Attorney General says that the relevance of this is unclear. Even if the statutory restrictions are limited, the applicants are said to be in a better position than that of many aged-out defendants whose cases were not prohibited. While the order may have been made in order to remedy the breach of the right to a trial with due expedition, the nexus between the breach and the remedy is unclear. It is submitted that the loss of s.93 rights could not, on its own, justify prohibition since otherwise all aged-out offenders would be entitled to that remedy.

93.  It is acknowledged by the Attorney General that in cases involving the application of the Donoghue balancing test to sexual offences there will be competing considerations - there is a particularly high public interest in prosecuting the charges, but there is also increased public opprobrium and consequently a greater level of prejudice. However, in the absence of an express finding that the prejudice was such as to warrant prohibition, the criteria for departing from Article 34.1 have not been met.

94.  The Irish Commission for Human Rights and Equality interprets s.93 of the Act as applying in any case where the accused as a child at the time of the alleged offence. Since, however, this was not a position taken by any of the parties in these proceedings the Commission, as an alternative, agrees with the Attorney General that the section does not preclude the making of a Gilchrist anonymity order if the defendant has reached 18.

95.  The Commission goes further than the Attorney General, however, and submits that it should not be seen as a wholly exceptional order. It is urged that a young person who made a serious mistake as a child should not, if it is avoidable, be burdened for life with the reputation of a serious offender but should instead be seen as deserving of the chance to rehabilitate to the greatest extent possible. It is submitted that this consideration alone would warrant an anonymity order and, therefore, that Gilchrist does not require additional exceptional circumstances.

96.  The Commission accepts that the administration of justice in public is an essential feature of a democracy. The primary means by which this objective is to be protected is through effective media reporting. Further, it accepts that reporting on a trial without naming the accused lessens the value of such reporting from the point of view of journalists and their readers. In principle, media entities should normally be heard before reporting restrictions are imposed. However, in this case Simons J. was correct to make the order because, on the Commission's reading of the judgment, he saw it as an alternative to prohibition. Neither the media nor the complainant would be entitled to be heard in relation to an order prohibiting a trial, and the making of such an order would entirely remove the case from the administration of justice.

97.  The Court has been referred to the principles applicable in some other jurisdictions. In the United Kingdom, statutory anonymity ceases at age 18 but the courts have a jurisdiction to make life-long anonymity orders described as Venables orders. Such orders are most readily available where there is a threat that engages Articles 2 and 3 of the European Convention on Human Rights (that is, a threat to life or of serious mistreatment amounting to inhuman or degrading treatment) but rights under Articles 8 and 10 may also come into play, depending on the comparative importance of the rights claimed in an individual case. The case law recognises the importance of rehabilitation, in the case of a person who committed an offences as a child, as a factor in the decision whether or not to make an order.

98.  In Australia, New Zealand and Canada the relevant legislation is capable of protecting aged-out offenders in respect of offences committed as children.

99.  It is submitted by the Commission that the fact that s.93 confers indefinite anonymity should not be seen as a windfall for defendants. Anonymity has a significant value beyond the protection of a child in the criminal process - it is an extremely valuable substantive protection in later life to those to whom it applies. The legislative intent should, therefore, be seen as directed towards the protection of the rehabilitation process for persons who offended while children.

The constitutional context

Children

100.                      As a preliminary, it is appropriate to mention certain constitutional provisions. Article 38.1 of the Constitution guarantees that no person shall be tried on any criminal charge save in due course of law, while Article 40.1 guarantees that all citizens shall, as human persons, be held equal before the law. These guarantees apply to children as well as to adults.  Article 42A, although primarily concerned with matters such as child care proceedings and adoptions, can be seen as expressly recognising the status of childhood.

101.                      Within these broad principles, the legislature must, of necessity, have a very broad margin of appreciation in creating procedures to deal with criminal conduct by children. To mention the most obvious point, the Constitution does not define childhood but leaves it to the legislature to determine as a matter of policy (subject, perhaps, to considerations such as the duty to protect young children and also, perhaps, the need to respect choices made by young adults as to their own lives) when the status, and any specific protections associated with that status, should be deemed to come to an end in various different contexts.

102.                      The Constitution does not, by the same token, prescribe any particular process or outcome for criminal prosecutions against children. Children are not immune to the criminal justice process and can be subjected to punishment. The point is that the guarantees of fair procedures and equality may, in the cases involving child defendants, justifiably be implemented by way of trial procedures that are adapted to accommodate at least to some extent (without compromising the fundamental principles according to which a criminal trial is conducted) certain relevant features of childhood.

103.                      There are several reasons why the law should extend particular protection to children rather than simply treating them as holders of rights, similar to but narrower in scope than those of adults. The weakness and vulnerability of children means that they require protection, such that, for example, the State must in some circumstances intervene in the authority of the family unit in order to protect the interests of a child.

104.                      Another reason to accord recognition to the status of childhood is the interest shared by society and the State in attempting to ensure that children grow to adulthood as integrated members of the community. As a matter of common knowledge, children in general simply do not have the level of ability to think ahead, understand consequences, make choices about their behaviour or control their own impulses in the way that would be expected of adults, and so it follows that they have a lesser culpability in respect of criminal behaviour. But it is also significant that, because the personality is still in the process of development, children have a relatively greater prospect of rehabilitation. That is a matter of importance to the general community, and not just to the individual child.

105.                      These factors - the vulnerability of children, their lesser culpability, the societal interest in assisting their development and the greater prospect of rehabilitation - are central features of the modern criminal law as it relates to children and are reflected in the provisions of the Children Act 2001. This does not mean that in a criminal prosecution the interests and welfare of a child defendant should necessarily take primacy over other interests. The contrast with care proceedings or custody disputes is obvious - those processes are concerned primarily with the interests of the child, but a criminal trial involves a far more complex range of rights and interests. There is in each case the broad interest of society in the prosecution and punishment of crime. In most cases there will be one or more victims whose rights also have to be protected and vindicated, and those victims may in some cases be children themselves. The need to have regard to those other rights and interests may mean that it is inevitable that involvement in the criminal justice process can distress and sometimes even cause damage to a child defendant. That does not, in itself, necessarily involve a breach of individual rights.

Administration of justice in public

106.                      Under Article 34 of the Constitution the administration of justice must take place in public, "save in such special and limited cases as may be prescribed by law". The public administration of justice brings into play the right to report on court proceedings, as part of the right to freedom of expression (Article 40.6.1°). The relevant principles established in the jurisprudence of this Court have been set out above.

Summary trial of minor offences

107.                      Article 38.2 of the Constitution provides that "minor" offences may be tried by courts of summary jurisdiction. In all other cases (apart from matters tried in the Special Criminal Courts or by a military court) an accused person is entitled to trial by jury and must be sent for trial on indictment to either the Circuit Court or the Central Criminal Court.

108.                      By statute, commencing with the Courts of Justice Act 1924, the District Court is a court of summary criminal jurisdiction. (When hearing charges against children it is referred to as the Children Court.) Summary jurisdiction depends entirely on statute - the District Court will not have jurisdiction to deal with an offence unless there is statutory authorisation for summary trial. Similarly, the Court's sentencing powers are constrained by statute and no custodial sentence can exceed 12 months.

109.                      Many offences (for example, most road traffic offences) are triable summarily only and must therefore be dealt with in the District Court. A small number of the most serious offences (such as murder and the graver forms of sexual offences) can only be tried in the Central Criminal Court. In that category of case, the role of the District Court is limited to conducting the preliminary procedures necessary before the accused person is sent forward to the Central Criminal Court. What the Court is concerned with in this case, however, is the process that takes place when the charge is one of the very large category of cases that may be tried either summarily in the District Court or on indictment in the Circuit Court, with a maximum penalty that will depend on the mode of trial. Both sexual assault and false imprisonment fall into this category.

110.                      Where the legislature makes provision of this sort in relation to an offence, it clearly envisages that the particular offence can be committed in varying circumstances, with varying degrees of gravity and culpability. Any particular instance may amount only to a minor offence, triable in the District Court, or it may be a more serious matter that must be sent for trial on indictment. The effect of the constitutional provision is that the District Court cannot accept jurisdiction unless satisfied that, on the facts of the case as made known to the judge, the case can appropriately be considered to be minor.

111.                      The decision may fall to made in a number of different situations. Offences covered by s.2 of the Criminal Justice Act 1951 and the First Schedule to that Act, (as amended, in particular by s.8 of the Criminal Justice (Miscellaneous Provisions) Act 1997) may be dealt with summarily if the Court is of the opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily, the accused (having been informed of the right to trial by jury) does not object and the prosecution consents. Many more recent statutes provide, however, that an offence will be triable either summarily or on indictment at the option of the prosecution. In such a case, if the prosecutor opts for summary trial, the accused will have no right to object but the judge will, nonetheless, still have to determine whether the facts disclose a minor offence. This determination must be made before embarking on a trial, but an initial decision to accept jurisdiction can be altered if the emergence of further information in the hearing causes the judge to change their mind.

112.                      As explained by Charleton J. in the recent case of People (DPP) v. Corcoran [2024] IESC 52, where the process by which jurisdiction is accepted or refused was comprehensively considered, the assessment must be based on the gravity of the individual case and the consequent potential penalty. Essentially, that means an assessment by the judge of the seriousness of the offence, (normally, having heard only an outline of the facts as presented orally by the prosecution) and a determination as to whether the appropriate sentence on conviction would be within the District Court jurisdiction.

113.                      The distinctive nature of a decision under s.75 of the Children Act 2001 is clear. It applies to nearly all indictable offences (other than manslaughter and those offences such as rape and murder that must be sent to the Central Criminal Court) and does not require the consent of the Director. It remains constitutionally necessary for the District Judge to determine whether or not the facts of the case disclose a minor offence, but in that assessment the judge will have in mind the sentence that would be appropriate for a child, and the range of sentencing options available under the Children Act. It is true that the harm done by an offence will not be altered by the age of the perpetrator but, for the reasons outlined above, the culpability will be reduced where the offence is committed by a child. The appropriate sentence is therefore likely to be less than that which might be imposed in the case of an adult offender.

114.                      There is no appeal against the decision of the District Judge to accept or refuse jurisdiction. This can be explained fairly easily - the decision can be described as a preliminary view based on outline information. The judge is obliged to conduct the assessment properly, and explain the decision, but does not have to be "right" in the sense of correctly predicting the final sentence that will be imposed in the event of a conviction.

115.                      It is essential to stress that where the decision is to send the matter forward to the Circuit Court, the assessment of gravity and appropriate sentence carried out in the District Court in no way dictates the outcome of the very different assessment to be carried out in the Circuit Court. If the person is convicted or pleads guilty, the Circuit Court judge is obliged to pass sentence in accordance with the fundamental principle applicable to sentencing - the sentence must be proportionate to the offence and to the circumstances of the offender. At that stage, the court will have considerably more information than was outlined to the District Court, in relation to the gravity of the offence and also the culpability and personal circumstances of the accused.

Discussion and conclusions

116.                      I agree with the applicants that there is no reason to suppose that the process of charge, trial and (if necessary) sentencing could not have been completed while they and the complainant were still children. The unexplained and unjustified delay, in a case where all of the individuals involved were children, was unfair to all of them. The value of due expedition in the investigation and prosecution of offences is not confined to defendants but is also very significant for victims. Neither the complainant nor the applicants should have had this matter hanging over them for so long.

117.                      All of the agencies concerned with the criminal justice process have recently agreed a Protocol, coordinated by the judges of the Central Criminal Court, to expedite murder and rape cases involving victims or defendants under the age of 18. The signatories, including the Director and the Garda Commissioner, acknowledge the vulnerability of children, and the fact that delay can cause damage to their lives and to the fairness of the court process. The Protocol envisages a total timeline, from the making of a complaint to sentence (where there is a conviction), of about 52 weeks.

118.                      The Protocol applies only to cases destined to be heard in the Central Criminal Court. It is to be hoped, however, that it will have some influence on the way relatively straightforward cases such as this one are dealt with in the other trial courts and that the kind of delay seen here will not be repeated.

119.                      The Donoghue test for prohibition or injunctive relief where blameworthy delay has been established in a case involving an offence alleged to have been committed by a child is set out above and is repeated here:

"...in any given case a balancing exercise has to carried out in which a number of factors will have to be put into the melting pot, including the length of delay itself, the age of the person to be tried at the time of the alleged offence, the seriousness of the charge, the complexity of the case, the nature of any prejudice relied on and any other relevant facts and circumstances. It is not enough to rely on the special duty on the State authorities to ensure a speedy trial of the child to prohibit a trial. An applicant must show something more as a consequence of the delay in order to prohibit the trial."

120.                      It is worth emphasising some of the features of the Donoghue case. The applicant had not, in fact, entirely lost the protection of the Children Act 2001 - he was charged while he was still a child, and had the benefit of a hearing under s.75. The charge was one of possession of a fairly substantial quantity of heroin with intent to supply and the decision of the District Judge to refuse jurisdiction could hardly be seen as irrational. The only prejudice that the applicant could demonstrate was the loss of the potential benefit of other provisions in the Act including the s.93 protection against public identification and the s.96 sentencing principles. It is also noteworthy that the parties in Donoghue did not engage in the kind of close, granular analysis of the Act that has been carried out in this case.

121.                      Donoghue and the subsequent cases demonstrate the difference between the way prejudicial delay is now assessed in cases involving adults and cases involving children. A person who is alleged to have committed an offence as an adult may be able to establish a breach of their right to a speedy trial, but they will not be entitled to an order preventing their trial from going ahead unless they can show that the delay has created the risk of an unfair trial. Where, however, the offence is alleged to have been committed by someone who was under 18 at the relevant time, they may be entitled to prohibition if they can show that blameworthy delay has caused prejudice without having to go so far as to establish a risk that a trial could not be fair.

122.                      The case law has also established that an applicant cannot succeed where the date of the alleged offence was in any way close in time to their eighteenth birthday, or where the investigation was a complex one, or where any significant part of the delay could be attributed to the applicant's own actions. In circumstances such as those, the authorities will not be seen as having failed in their duty to act expeditiously and the right of the applicant to a speedy trial will not have been breached.

123.                      Leaving such cases aside, it seems that even in cases of blameworthy delay on the part of the authorities the loss of the statutory protections has generally not been seen as a sufficient ground for prohibition where the charge is considered to be serious. [1]

124.                      The concept of "seriousness" as deployed in Donoghue was not intended to be a legal term of art. It cannot be directly equated with the constitutional distinction between minor and non-minor offences, or with the statutory distinctions between offences that are triable summarily only and offences that can be tried on indictment. Nor can seriousness be assessed by reference to the maximum penalty available for the offence in the abstract - for example, the maximum sentence for possession of drugs with intent to supply, contrary to s.15 of the Misuse of Drugs Act 1977 (as amended) is life imprisonment but s.15 charges are frequently dealt with in the District Court.

125.                      It seems clear that, rather than proposing any categorisation of seriousness, what the Court in Donoghue envisaged was a case-specific, fact-based assessment which takes into account the alleged harm done by the offence, including harm to any victim, and the presence of any aggravating factors. The outcome of such an assessment will, in turn, feed into the consideration of the question whether the public interest in continuing the prosecution outweighs the damage done to the interests of the accused.

126.                      In this context, the question is not necessarily answered by reference to the likely severity or lenience of any sentence that might be imposed in the particular case. The public interest in the proper administration of justice does not depend on the outcome of an individual case so much as on the proper functioning of the process. The fact that a trial ends with the imposition of a non-custodial sentence does not, of itself, imply that the offence was not serious.

127.                      The interests of victims, in the sense of their own personal entitlement to vindication of their rights, will be an important element in the consideration of the public interest in continuing with the prosecution. Where an offence has caused appreciable harm to an identifiable person or persons, the public at large has an interest in the pursuit of justice through the criminal justice system. This is in part because of the deterrent effects of prosecutions (although the value of deterrence would not justify proceeding with a prosecution where the circumstances are such that it would be unfair).

128.                      These considerations will generally favour the prosecution of a serious crime. In such a case prohibition should be seen as an exceptional measure, to be granted only if the delay has caused serious prejudice beyond the norm. Where prohibition is not appropriate, it seems to me that a court should consider the extent to which it can direct other measures, that could remedy the effects of a breach of rights.  

129.                      Turning to the analysis of this case in the judgment of Simons J., I agree with much of his views on the relevant statutory provisions and that the most significant is clearly s.93. The other provisions relied upon are important to the operation of the Act but are not of the same magnitude in terms of lasting impact.

130.                      Section 75 is of value to an accused child for a number of reasons. The Director cannot veto a decision to deal summarily with a case. If such a decision is made the child can be immediately assured that no sentence greater than 12 months detention will be imposed. The whole process, if dealt with in the Children Court, will be swifter than trial on indictment in the Circuit Court. It is very important that a case involving a child should be handled expeditiously, not least because it enables the rehabilitation process to commence earlier with consequent benefits to society. A further consideration is that a lapse of time between an offence and punishment can make it difficult for the child to understand the connection between the two.

131.                      If the unavailability of the s.75 procedure is relied upon as one of the grounds for relief in a delay case, it seems to me that in principle the applicants are correct in their argument as to the test applied by the trial judge. It was an error to hold that they had to prove on the balance of probabilities that the District Judge would have excluded the possibility of a sentence of greater than 12 months. That is not the way that the decision on jurisdiction is approached - the question for the District Judge is whether, on the preliminary assessment of the facts of the case, the sentencing options available to the District Court are sufficient. This question is answered on the basis of an outline of the facts, without necessarily knowing whether the accused will plead guilty or not, and not after the kind of exhaustive analysis of evidence that would be required to "exclude" the possibility of a particular form of sentence.

132.                      In my opinion, however, important as s.75 is to the operation of the Children Court, it is very difficult for a number of reasons to see it as a matter of great weight in proceedings seeking prohibition. The first consideration is that the High Court is not well placed to speculate as to what the outcome of a hearing might have been, had s.75 been available. It is noted that in some cases the applicant's solicitors have provided opinion evidence. I do not see this as necessarily appropriate - the involvement of legal representatives in the case means that they do not have the necessary independence to give an expert view, and such a practice could simply create pressure on practitioners to give the requisite opinion in every case.

133.                      It is particularly difficult to assess the significance of such a loss of opportunity without knowing what the applicant might have put forward in such a hearing, including their intention to plead guilty or otherwise, and it is in the nature of judicial review proceedings like these that the applicant may not want to reveal their position fully. But if an applicant does disclose a wish to plead guilty, it seems to me that the inevitable result must be that the judicial review application will fail. This is because the High Court can never assume that the Circuit Court would not impose the appropriate sentence, whatever that might be. In principle, if it becomes apparent to a sentencing court that the case should be dealt with by way of a non-custodial sentence, or a sentence of less than 12 months, then that is the sentence that should be imposed.

134.                      It is for these reasons that I do not think that the unavailability of s.75 is a major consideration in terms of grounding an order of prohibition. It is, nonetheless, a loss, to some extent, to an accused who has aged out. Where this was caused by the breach of duty on the part of the gardaí and prosecution authorities, it seems to me that it is incumbent on the Director to acknowledge that she would not, if charges had been brought at an appropriate time, have had a right to veto summary disposal. In those circumstances she should give serious consideration to consenting to such disposal in order to minimise any further delay and the concomitant stress for all concerned in the case. This would not, of course, be relevant where it is clear that the facts of the case are such as to make summary disposal inappropriate.

135.                      As far as the sentencing provisions in the Act are concerned, I would emphasise that the age of the person at the time of the offence is not simply a relevant factor but is, where the offence was committed by a child, a central feature in the assessment of culpability. The gravity of the offence and the culpability of the accused are the starting points in the sentencing decision, and neither will have changed with the lapse of time from the date of the offence. On the other hand, the personal circumstances of the accused, and their insight into offending, may well have changed as they have grown older. In such circumstances I would find it very surprising if a judge decided to impose sentence on an adult, for a serious offence committed by a child, without the benefit of a probation report. I would, therefore, give little weight to the fact that it would not be mandatory (as it would be if s.99 applied).

136.                      Similarly, I do not find the inapplicability of s.96 (the sentencing principles) and s.98 (the sentencing options) to be of great significance. The obvious feature of these provisions is that they are focussed on the continuing development of the child, ideally at home with their families. It is for that reason that orders can be made for parental supervision, and parents can be fined or bound over for offences committed by their children. The fact that such orders are not available in the case of a defendant who has aged out is not, in my view, to be seen as a "loss" - it simply reflects the fact that one range of possible options is suited to one age group and not to another.

137.                      Very little of the content of these two provisions would actually be applicable to a person over the age of 18. The applicants do, however, rely heavily on the fact that the Act requires the sentencing court to see a custodial sentence as a last resort. On this aspect, I agree with the Director that this is in any event a general principle of sentencing law. In a case where the objectives of the sentencing process can be achieved by an alternative disposal, it is arguably an error in principle to instead deprive a person of their liberty, with all of the associated damage to family relationships and employment possibilities.

138.                      Furthermore, in a case where there has been unjustified delay that has resulted in a child "ageing out", a court dealing with an offence committed by a child must bear in mind that the Act would have applied if the defendant had been charged at an earlier time. A person cannot be punished for growing older. If detention would not have been the right sentence for the child, then imprisonment may well not be the right sentence for the adult (although much, obviously, would depend on their record in the intervening period).

139.                      Turning to s.93, it will be recalled that in the recent decision of this Court in People (Director of Public Prosecutions) v P.B., it was emphasised that the section not only protects young offenders from additional pressure and stress in the criminal justice system but assists in rehabilitation when their involvement with that system has concluded. The Children Act 2001 is heavily focussed on rehabilitation, and one of the most important reasons for treating children differently to adults is their greater capacity for rehabilitation. The ultimate objective is the reintegration of the child offender into society and anonymity is obviously beneficial to that end.

140.                      This provision is the most significant of the statutory provisions relied upon by the applicants, largely because of its potential life-long duration and its contribution to the rehabilitation of offenders. The position of a defendant who has benefitted from it contrasts strongly with that of persons who are subjected to the potentially life-changing effects of identification and publicity. The contrast is all the more striking if the latter find themselves in this position because of the blameworthy inactivity of garda or prosecution authorities.

141.                      The question, then, is whether in this case the loss of this potentially life-long protection requires, or could justify, an order of prohibition.

142.                      The first point to be made on this aspect is that blameworthy delay has been held to have occurred in this case. On the evidence, the delay was both unexplained and lengthy - all of the individuals concerned went from adolescence to young adulthood before charges were brought. The extent of the delay has been such as to amount to a breach of the applicants' constitutional right to a speedy trial. The courts (as the judicial arm of the State) are accordingly obliged by the express words of Article 40.3.1 to 'vindicate' that right by providing an appropriately effective remedy in respect of that breach. In the context of the present case, that breach can most effectively be remedied by the making by the High Court of a Gilchrist order.

143.                      The second point is that the breach of rights did not imperil the possibility of a fair trial. It did, however, have the highly damaging effect of causing the applicants to lose the potentially life-long protection against publication of their identities. In other words, they have lost a protection that the Oireachtas intended them to have, and that they would undoubtedly have had were it not for the breach of duty. This is a matter of great significance in the context of a case of this particular nature.

144.                      There is, however, a very significant countervailing feature. The complainant's account of events, if found in due course to be true, describes an experience that caused her significant personal distress and humiliation, suffered at the hands of schoolmates with whom she should have felt safe. She was entitled to expect that her complaint would be investigated, and decisions made about it, with due expedition. The fact that this did not come about should not have the result that her interests in the prosecution process are now to be discounted. There is also a public interest in ensuring that matters of this kind, where the allegation is that identifiable harm was caused to a young and vulnerable person, are dealt with in the justice system. Not least, this is because parents and teachers need to be able to explain to children that their actions can have legal as well as social consequences.

145.                      In my view, the seriousness of what is alleged against the applicants in this case is such that prohibition is not appropriate.

146.                      Simons J. saw the loss of the s.93 protection as the only really relevant statutory provision the balancing exercise. Having regard to the passages from his judgment quoted above (especially in paragraph 54), it seems to me to be also clear that he saw the loss of that protection as potentially justifying an order prohibiting the trial, because in this case it exposed the applicants to identification in a case likely to attract significant public opprobrium. That is why he made the Gilchrist order - not because there was any risk to the fairness of the trial, but because the breach of duty caused identifiable damage. It was in those circumstances that he invoked the inherent jurisdiction, as a way of remedying the specific harm that had been caused without going so far as to prevent the trial from going ahead.

147.                      In my view, it is not necessary to establish that prohibition would be an appropriate remedy before the Gilchrist jurisdiction can be invoked. That is because the interests protected by such an order, in this context, are matters of sufficient value and weight. Firstly, there has been a breach of a constitutional right - the right to a speedy trial. Secondly, that breach has caused the loss of a valuable statutory provision designed to assist children while in the criminal justice process and to endure after the completion of that process. Section 93 protects a particularly vulnerable cohort of defendants and provides significant assistance towards their rehabilitation when their involvement with the criminal justice system is over. In so doing, the section is consonant with the constitutional status of children and with a legal order that acknowledges the desirability of treating children differently to adults in this context. It is also consonant with the rest of a statute that, while providing for a criminal justice system geared towards children, is heavily focussed on their development and rehabilitation. The section, therefore, reflects a value of significant weight.

148.                      Having regard to the constitutional status of childhood, the reasons for that status and the intent of the legislature, I would hold that a Gilchrist order can be an appropriate order where blameworthy delay, resulting in the bringing of charges after the accused has reached the age of 18, has created a situation where the accused individual will be exposed to serious public odium. There is a clear nexus between the breach, the damaging effects of the breach and the remedy for that damage.

149.                      In the circumstances of this case I would uphold the making of the order.

150.                      I agree with the Commission's views on the importance of media reporting in the criminal courts, and also on the desirability in some circumstances of hearing representations from the media before making an order that restricts reporting. I do not, however, see that that such representations would be appropriate in a case such as this. If the investigation and charging process had been conducted with reasonable expedition, in accordance with constitutional duty, the media would in the normal course have been prohibited by law from identifying the applicants. If, alternatively, an order of prohibition were to be made, there would be no trial to report on.

151.                      However, it should be borne in mind that the effect, and therefore the purpose, of a Gilchrist order in this context would be to partially restore the accused person to the situation that they would have been in had the charges been brought in a timely manner - in other words, to provide a protection equivalent to that afforded by s.93 of the Act. It is therefore necessary to make some provision for the possibility, envisaged in s.93, that circumstances might arise in which it would be desirable to lift restrictions in the public interest or the interests of justice. Accordingly, I would vary the order made in the High Court to permit the Circuit Court (in which this trial will be held) to lift the reporting restrictions, on application by an appropriate person, in the same circumstances as apply under s.93.

152.                      In the course of the hearing, there was some brief debate as to whether, if a Gilchrist order could be made in cases such as this, it should be made only in the High Court and not in the District Court or Circuit Court. The starting point here is that every court has an obligation to uphold the Constitution, and also has the power to regulate its own procedures. As Denham J. held in Coughlan v Patwell [1993] 1 I.R.  31 (with particular reference to the District Court) a court of limited statutory power remains at all times a court which must protect the individual constitutional rights of the person. Denham J. cited Ellis v O'Dea [1989] I.R. 530 at p 537, where Walsh J. referred to "the undoubted residual jurisdiction of the District Court to protect the constitutional rights of any person appearing before it. All persons appearing before the courts of Ireland are entitled to protection against all unfair or unjust procedures or practices." The District Court and Circuit Court both have a duty to act constitutionally and to act in such a manner as to preserve an individual's constitutional rights.

153.                      Since in the context under consideration a Gilchrist order is an effective remedy for the most prejudicial consequence of the breach of the constitutional right to a trial with due expedition, any court having seisin of the matter (including the District Court when engaged in preliminary procedures prior to sending a case forward for trial on indictment) would in my view be entitled to make such an order if it finds that unjustified delay has resulted in the potential exposure of the accused to serious public odium. If necessary, this could be done on a short-term basis on the first day that the matter is dealt with in the District Court, where it is apparent that there was a significant period of time between the offence and charge, pending the making of submissions by the parties. Beyond that, there would be jurisdiction to make an order that could apply for so long as the court has seisin of the case. Similarly, the Circuit Court could make an order covering the period while it has seisin. A court is also entitled to set aside its order, if an appropriate application is be made while it retains seisin.

154.                      Since I would uphold the order made by the High Court in this case, subject to the variation I have referred to, it is not necessary to reach any decided conclusion as to whether the District Court or Circuit Court would have the inherent power to grant an order with more permanent effect. (It is clear that the High Court, and therefore the Central Criminal Court, would.) It may be that an issue will arise in another case as to whether it would be necessary for a defendant appearing in one of those courts to apply to the High Court for such an order. It would, of course, be possible for the legislature to provide for and regulate such a power in the trial courts.

155.                      In summary, I have come to the following conclusions.

(i)                 In an application for prohibition or injunctive relief, where no specific prejudice is claimed and the sole ground for such relief is that the delay has led to a child offender reaching the age of 18 and thus losing the protection of the Children Act 2001, it will rarely be appropriate to grant such a remedy if the offence is found to be serious. The assessment of seriousness requires a case-specific, fact-based analysis of the harm allegedly done, including harm to an identifiable victim, and the presence of any aggravating factors. If the offence is serious, the public interest in the administration of justice and the prosecution of offences will generally outweigh the damage done to the interests of the defendant even if a breach of the right to a trial with due expedition has been established.

(ii)              Nonetheless, where the delay has been found to be such as to amount to a breach of the constitutional right to a trial with due expedition, and the defendant has as a result lost the protection of the Act, the court should consider granting remedies falling short of prohibition to address the effects of the breach on the interests of the defendant.

(iii)            Since, in this context, the most significant of the protections afforded by the Act is that provided for in s.93, the court should consider making a Gilchrist order if not to do so would expose the defendant to serious public odium.

(iv)             The terms of a Gilchrist order should be equivalent to the terms of s.93, so that it is possible for the trial court to lift it, on application by an appropriate person, for any of the reasons set out in the section.

(v)               The High Court, and therefore the Central Criminal Court, has the power to grant orders with permanent effect. This judgment does not determine the full scope of the powers of the District Court and Circuit Court, and hence does not determine that they have power to make an order of that extent. I do, however, find that they have the power to make an order that covers, at least, the time during which they have seisin of a matter.

Result:     Dismiss