The High Court overturned a juvenile court decision to retain jurisdiction in a sexual assault case against a child defendant.
About this case:
 IEHC 705
- To research:
Mr. Justice Cian Ferriter
The trial judge had decided to hear the sexual assault case under the provisions of section 75 of the Children’s Act 2001 despite the fact that the child was also charged with rape which had to be heard by the Central Criminal Court.
In rendering judgment in the case, Judge Cian Ferriter determined that the decision should be set aside on the grounds that the trial judge had not formally verified with the child whether he had chosen the summary settlement of the case. In addition, it was concluded that the judge had not given adequate reasons for his decision to retain his jurisdiction.
The child, known as DA, allegedly raped and sexually assaulted a girl in January 2020. He was 15 and the complainant was 16 at the time of the incident. DA was subsequently charged with one count of rape in violation of section 4 of the Criminal Law Amendment (Rape) Act 1990 and one count of sexual assault contrary to section 2 of the Act.
The case was taken to Dublin District Court serving as a juvenile court on April 19, 2021. At the hearing, the court determined whether the offenses should be dealt with summarily.
Article 75 of the 2001 law provided that a court could summarily try criminal acts if the accused was a child, unless the offense had to be tried by the Central Criminal Court. In addition, subsection 75 (3) provided that a court would not summarily deal with a case if a child chose to be tried by jury. Section 75 (3) required that a child be informed of his or her right to a jury trial by the court.
It was argued on behalf of DA that the sexual assault charge should remain in juvenile court, given DA’s age and the fact that he was autistic. In response, the DPP argued that the rape charge should be tried by the Central Criminal Court. Thus, if the court retained jurisdiction over the sexual assault charge, then there would be two trials arising from the same incident.
During the hearing, DA intervened at a certain point in the examination-in-chief of the Garda and said, âI don’t need to go to a higher court. However, DA was never expressly informed of his right to elect a jury trial. In the end, the court decided to retain jurisdiction over the sexual assault charge and said, âIt’s up to the director to decide what she wants to do on section 4. [offence]. “
DA’s attorney subsequently wrote to the DPP stressing that it was unfair for two trials to take place for the same incident. As a result, DA’s attorney suggested that one of the charges could be dropped or the rape charge could be converted to sexual assault and heard with the other offense.
The DPP insisted that both counts be tried. In June 2021, the DPP asked the trial judge to reconsider her decision on the grounds that no submissions had been made on the implications of maintaining jurisdiction over the rape offense. This was refused by the judge and the DPP initiated judicial review proceedings.
In rendering judgment in the case, Judge Cian Ferriter determined that the trial being held erred in law. The court began by noting that Article 75 gave the district court the legal power to make an election for a summary trial which was subject to the informed consent of the child (DPP c. Judge Hunt & Anor.  IEHC 56). In addition, it was found to be a substantial procedural advantage for the child defendants (DPP c. E  IECA 101).
The court then defined the appropriate test to be adopted by a court in a decision to maintain jurisdiction. Section 75 (3) of the 2001 Act was held to require a court to inform the child of their right to a jury trial and to verify whether a child would consent to a summary hearing. .
The court ruled that the trial judge failed to advise DA of his right to a jury trial, stating that it was a “legal precondition for the district court to exercise the right to a jury trial. jurisdiction ‘under Article 75 (Cirpaci v. The Governor of Mountjoy Prison  2 IR 471 applied).
The court admitted that the proceedings in the juvenile court were conducted on an informal basis, but found that a court was still bound to comply with legal obligations. It was also admitted that all parties assumed that DA did not want a jury trial. However, the court held that he was bound by CirpÃ¡ci, which stipulated that the condition of informing a child of his or her right to choose a jury trial was a mandatory obligation.
In addition, the court found that the district court had not given reasons for the decision to maintain its jurisdiction. It was held that the court was under an obligation to provide brief reasons for its decision, particularly in view of the seriousness of the charges.
It was also ruled that the judge erred in stating that it was up to the DPP to decide what to do with the rape charge. The court said the judge either meant the rape charge could be dropped or the DPP had discretion to decide how the rape trial would go. Both meanings were wrong in law, the court ruled.
The court did not allow the DPP to argue that the ruling violated the rule against sequential trials because it had not been raised in juvenile court. However, it was stated that this principle was very relevant in the present case. In general, only exceptional circumstances would allow two separate trials on the same facts (Cosgrave v. DPP  3 RI666; Ross v. DPP  IECA 264).
Finally, the court declined to determine conclusively whether the decision should be set aside due to an error in the face of the district court’s order or whether the judge had jurisdiction to reconsider his decision under Article 75.
The court overturned the juvenile court’s decision to retain jurisdiction and sent the case back for reconsideration by another district court judge.