Friday 23 March 2018

High Court halts trial for the rape of girl (8) because of delay in charging suspect

A MAN'S trial for the rape an eight-year-old girl when he was 15 has been stopped by order of the High Court.

The alleged incident occurred in July 2008 but the man was not charged until July 2012, just before his 20th birthday.

The case arose from an incident on a night in July 2008 at a party to celebrate a family event. The man was the son of a family friend and well known to the eight year old girl.

It was alleged he took her into a bathroom, locked the door, raped her vaginally and also attempted to, or did, rape her anally.

The child told her mother and a garda investigation was initiated. On July 7, the accused made a statement containing admissions about the girl and about another girl.

In a judgment yesterday dealing with the rights of children charged with serious offences, Ms Justice Iseult O'Malley ruled the man, now aged 21, is entitled to orders restraining his prosecution on grounds the four year delay in charging him had deprived him both of his right to be tried as a child and his right to anonymity.

There is "a special duty" on the prosecuting authorities to expedite cases involving children but there was "a serious failure" of the system in this case, she said.

The need for more speedy expedition of the trials of children was based on factors including that children differ from adults concerning not just their physical development but their intellectual, social and emotional undertsanding, she said.

She rejected arguments by the DPP the appropriate test to apply in deciding if the trial should proceeed was not whether there was any loss of rights under the Children Act but rather if the right to a fair trial was breached or the delay had caused undue stress and anxiety.

In this case, the delays arose despite the fact the investigation into the young girl's complaint, made July 2008, was "quite straightforward" and largely complete within a month, the judge noted.

The only explanations given for the delay were that the original garda officer in charge of the investigation had been moved to another county and a suggestion of a misunderstanding in the National Juvenile Office (NJO) as to whether it had received certain documents from the gardai. Neither explanation was adequate, she said.

While she assumed the NJO had a large case load, its delay of two years in making a decision on the case was unacceptable.

There was an impression the investigating gardai and the NJO were to some extent leaving things up to each other and the result was they made a decision the file should go to the DPP just days before the accused's 20th birthday.

The strongest argument in favour of letting the trial proceed was that the man was charged with very serious offences against a very young girl, she said.

It was undoubtedly correct there was a public interest in a court decision on his guilt or innocence and in the mandatory supervision that follows a conviction on a sex offence.

However, in this case, the reality was there had been all but a formal plea of guilty on the man's part and he had worked "very hard" over two years in a treatment and rehabilitation programme posited on his acceptance of guilt for his actions.

It seemed to her "quite wrong" to put his achievements at risk at this stage.

Admission to the particular programme also means the relevant child may not be prosecuted for the relevant offending behaviour, she noted.

The judge outlined a long chronology of events during 2008, 2009,2010,

2011 and 2012 relating to communciations between the gardai, the National Juvenile Office (NJO) and the DPP.

The documents relating to the case were sent to the NJO in June 2010 after it sought the "full file", she said.  In September 2011, a garda sergeant was assigned to "complete the file"

That sergeant, in October 2011, took a statement from the mother of the other girl who had also made allegations against him.

In July 2012, the sergeant sent the file and covering report relating to both children to the DPP.

That month, the DPP directed the prosecution of the man on two charges relating to the eight-year-old girl of rape and attempted rape. In October 2012, he was sent forward for trial but that remained on hold pending his judicial review challenge to the High Court.

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