Cash v DPP

Factual and Procedural Background

This judicial review application was brought by the Plaintiff seeking an order of prohibition or alternatively an injunction to restrain the Defendant from further prosecuting the Plaintiff on an indictment alleging theft as a trespasser at a private residence on 17 July 2014. The Plaintiff contended that he was a minor (seventeen years and nine days old) at the time of the offence and that due to substantial prosecutorial delay by the Defendant, his right to be tried and sentenced as a child was infringed. The Plaintiff claimed breaches of his constitutional rights to a trial with reasonable expedition under Article 38.1 and to equality under Article 40.1 of Bunreacht na hÉireann. The Court granted leave for the judicial review application on 4 July 2016. The Defendant opposed the application, asserting that any delays were attributable to the Plaintiff's failure to appear in court and that the prosecution was conducted with due expedition in the public interest. Affidavits were sworn by solicitors, the Plaintiff's mother, and Garda officers involved in the investigation. The Plaintiff himself did not provide an affidavit or contradict the Garda evidence. The background facts include the identification of the Plaintiff by a witness at the scene, attempts to serve court appearances, issuance and execution of bench warrants due to the Plaintiff's non-appearances, and eventual charging of the Plaintiff in January 2016.

Legal Issues Presented

1. Whether the prosecutorial delay deprived the Plaintiff of the constitutional right to be tried and sentenced as a child.
2. Whether the Defendant breached the Plaintiff's right to a trial with reasonable expedition under Article 38.1 of Bunreacht na hÉireann.
3. Whether the prosecution violated the equality guarantee under Article 40.1 of Bunreacht na hÉireann.
4. Whether the Court should exercise its discretion to prohibit the trial based on prosecutorial delay and the public interest.

Arguments of the Parties

Applicant's Arguments

• The Plaintiff was a minor at the time of the offence and due to prosecutorial delay, was deprived of the right to be tried and sentenced as a child.
• The delay breached his constitutional right to a trial with reasonable expedition as required by Article 38.1.
• The delay also breached the constitutional equality guarantee under Article 40.1.

Respondent's Arguments

• The prosecution was conducted with all due expedition.
• Any delay was caused by the Plaintiff's failure to appear and difficulties in locating him.
• The Defendant was fulfilling the public interest by prosecuting a relatively serious offence.
• The Court should refuse relief and allow the prosecution to proceed in the interests of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the timeline of events and found no blameworthy prosecutorial delay from the date of the offence until 2 February 2015, attributing delay primarily to the Plaintiff's evasion and failure to appear in court. The Court acknowledged some prosecutorial delay between 2 February 2015 and the formal charging on 7 January 2016 but did not consider this delay significant or culpable. The Plaintiff reached majority on 8 July 2015, and the Court held that any delay after this date was irrelevant to his claim. The Court relied on the principles established in Donohue v. Director of Public Prosecutions, which emphasise a special duty owed to minors but also balance this against the public interest in prosecuting offences. Given the Plaintiff's age and circumstances, the Court concluded that the public interest in proceeding with prosecution outweighed any prejudice caused by delay. Therefore, the Court refused the application for prohibition or injunction.

Holding and Implications

The Court REFUSED the Plaintiff's application for an order of prohibition or injunction to restrain prosecution.

The direct effect of this decision is that the prosecution against the Plaintiff will continue. The Court did not establish any new precedent but applied existing principles balancing prosecutorial delay against public interest, particularly in cases involving minors nearing majority age.