Inherent Jurisdiction Anonymity Orders as Remedy for Aged-Out Child Defendants

Introduction

This commentary examines the Supreme Court of Ireland decision in Doe (No. 1), Doe (No. 2) and Doe (No. 3) v The Director of Public Prosecutions [2025] IESC 17. The case arose from alleged sexual assault and false imprisonment of a 16-year-old girl by three male classmates in June 2019. Each applicant was a child at the time of the offence and arrest but over 18 when formally charged, due to unexplained investigation and prosecution delays. The High Court found a constitutional breach of the right to a trial with due expedition and imposed an “ad hoc” reporting-restriction order (a Gilchrist order). The applicants sought prohibition of further trial; the Director cross-appealed against the anonymity order; the Attorney General and the Irish Human Rights and Equality Commission intervened.

Summary of the Judgment

Justice O’Malley held that:

The Gardaí and prosecution authorities caused “blameworthy” delay breaching the applicants’ constitutional right to a speedy trial.
On balance, the only prejudice shown was loss of lifelong anonymity under section 93 of the Children Act 2001 (“aged-out” protection).
Prohibition of trial was inappropriate given the seriousness of the alleged offences and the public interest in prosecution.
The High Court had inherent jurisdiction—under Gilchrist v Sunday Newspapers Ltd—to impose reporting restrictions akin to s. 93. This “lesser” remedy vindicated the applicants’ rights without preventing trial.
The Supreme Court upheld the Gilchrist order but clarified that trial courts (District, Circuit and Central Criminal Courts) may, when seised, impose or vary such orders and may lift them in accordance with the terms of s. 93.

Analysis

Precedents Cited

Gilchrist v Sunday Newspapers Ltd [2017] IESC 18 – Established that courts have a narrow inherent jurisdiction to depart from in-public hearings or impose reporting restrictions when “interests involved are particularly important” and necessity “truly compelling.”
Donoghue v DPP [2014] IESC 56 – Held that in child-offender delay cases the court must balance “blameworthy” delay, seriousness of offence, age at offence, complexity, prejudice (e.g. loss of statutory protections) and public interest before prohibiting trial.
PM v DPP [2006] IESC 22 – Articulated that serious prosecutorial delay is one factor among many in the balancing exercise; delay alone does not compel prohibition.
Irish Times Ltd v Ireland [1998] 1 I.R. 359 and Re R [1989] I.R. 126 – Defined the constitutional principle of open justice (Article 34.1) and carved out narrowly construed exceptions for in-camera proceedings.
People (DPP) v PB [2025] IESC 12 – Confirmed that s. 93 anonymity does not apply once criminal proceedings commence on or after age 18.

Legal Reasoning

The Supreme Court applied a two-stage approach:

Establish breach: The High Court found unexplained delays (between complaint, specialist interview, arrest, file submission, charging) cumulatively unjustified and procedurally blameworthy. This violated the applicants’ constitutional right to “due expedition” in child-offender cases.
Remedy balance: Under Donoghue, the Court weighed (a) prejudice from loss of s. 93 anonymity, s. 75 summary disposal, s. 96–99 sentencing protections, and (b) public interest in prosecuting serious sexual-offence and false-imprisonment allegations. Only loss of anonymity was significant; summary disposal and sentencing protections were of lesser weight.

Because prohibition would undermine public interest and victims’ rights, the Court upheld the “lesser” remedy—an inherent-jurisdiction order imposing reporting restrictions equivalent to s. 93’s protection. It stressed that any departure from open justice must be strictly construed and only to the minimal extent necessary.

Impact

This judgment confirms that, when child defendants “age out” due to prosecutorial delay, courts may invoke Gilchrist powers to restore lost anonymity without halting the trial.
It clarifies that District, Circuit and Central Criminal Courts—all seised of child-offender matters—have inherent jurisdiction to impose, vary or lift such reporting orders while they retain seisin.
The decision reinforces State duties under Article 40.3.1° to vindicate constitutional rights through proportionate remedies.
It may prompt the Oireachtas to codify a statutory scheme allowing post-18 anonymity orders or to expedite child-offender prosecutions further.
Defence and prosecutorial practice must adapt: timely charging to preserve s. 93 protections, early consideration of section 75 summary disposal, and strategic use of Gilchrist orders when delays occur.

Complex Concepts Simplified

Due Expedition: The constitutional right to have a criminal case (especially for child defendants) investigated and brought to trial without undue delay.
Blameworthy Delay: Delay for which the State (Gardaí or prosecution) is responsible, unexplained, and unjustified, infringing speedy-trial rights.
Inherent Jurisdiction (Gilchrist Orders): The High Court’s (and other courts’) residual power to regulate proceedings, including imposing reporting restrictions, when strictly necessary to protect fundamental rights.
Section 93 Children Act 2001: Statutory lifelong anonymity for child defendants preventing public identification in any media or broadcasts.
Section 75 Children Act 2001: Procedure allowing the District Court to decide if an indictable offence by a child is “minor” and can be tried summarily (max 12-month sentence) without DPP consent.

Conclusion

The Supreme Court’s decision in Doe v DPP [2025] IESC 17 establishes that when prosecutorial delay causes child defendants to lose statutory anonymity, courts may—short of prohibiting trial—use their inherent jurisdiction to impose “Gilchrist orders” restoring that protection. Prohibition remains reserved for cases where the cumulative prejudice (beyond loss of anonymity) and public-interest balance demand it. This nuanced approach vindicates constitutional speed-trial rights, preserves open-justice principles, and maintains the public interest in prosecuting serious offences. Trial courts at all levels should now recognize their power to impose, vary and lift such orders, ensuring no child defendant is doubly disadvantaged by State delay.