The child was subsequently refused entry to the programme, and the guilty admission was used in evidence against the person in judicial-review proceedings.
Delivering judgment in the case, Ms Justice Miriam O’Regan held that there was culpable prosecutorial delay in the case, but determined that this did not tip the balance of justice in favour of restraining the prosecution.
The judge ruled that an applicant was not entitled to an order restraining his prosecution for an assault allegedly committed as a child despite prosecutorial delay.
The incident occurred in May 2017 when the applicant was 16 years old, but he was only summonsed before the District Court in February 2021.
The court noted that the applicant had come to the attention of gardaí since obtaining maturity, so the loss of anonymity was not prejudicial.
Further, the two-year delay post-maturity did not place any additional prejudice on the applicant, the court said.
The court heard that the delay was difficult to understand, as the applicant had been before the courts several times, and had been in custody for trial on unrelated offences since 2020.
He was also serving a custodial sentence from March 2021.
The DPP argued that the subsequent prosecutions of the applicant “seriously diluted if not eliminated” the right to anonymity in the case.
The DPP also said that the investigating garda had been dealing with 40 other cases, and the DPP had difficulty serving the applicant at the address supplied.
Section 48(1) of the Children Act 2001 provides that “no evidence shall be admissible in any court in respect of (a) any acceptance by a child of responsibility for criminal or anti-social behaviour in respect of which the child has been admitted to the programme”.
The act is silent concerning the use in evidence of guilty admissions made by children under consideration for entry to the programme, but who are subsequently refused and prosecuted.
It creates a situation of significant unfairness to children who are required to accept responsibility for the offending behaviour as the pre-eminent criterion for entry, but with no guarantee of being accepted into the statutory diversion scheme.
The situation exposes the person to such an admission of guilt being used as evidence in criminal proceedings in like manner which occurred in the judicial-review proceedings.
The issuing of a caution before the making of admissions against the child’s interests is the red flag (judges rules).
Acceptance of responsibility by the child for the purpose of entry to the programme should not and need not occur under caution, Byrnes writes.
It is important not to confuse that manner of caution with the statutory caution issued after entry to the programme occurs (per s.25).
Incidentally, several concerns for the statutory scheme were highlighted by James McGowan SC and Sarah Jane Judge BL in the current Bar Review (June 2023).