JUDGMENT of Mr. Justice Charles Meenan delivered on the 29th day of January 2026�
1. The appellant (date of birth early 2007) is charged with one count of rape contrary to s. 48 of the Offences Against the Person Act, 1861, and s. 2 of the Criminal Law (Rape) Act, 1981 (as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act, 1990).� The rape is alleged to have occurred on a date in March 2022.
2. The complainant (date of birth April 2007) made her complaint immediately after the event.� The appellant was told by a relative that the complainant had accused him of rape.� The appellant told his mother of these events and she brought him to a Garda station.� These events occurred on the same date as the alleged rape.
Prosecution of appellant: -
3. �The following is a chronology of the various steps taken in investigating the complaint and subsequent prosecution of the appellant: -
(1) On the date of the alleged rape the Garda� spoke to the complainant and searched the outdoor area in which it had allegedly taken place.
(2) In the early hours of the following day, the complainant was brought to the sexual assault unit at the Rotunda hospital where she was examined.
(3) On 20, 21, 27 and 29 March 2022 Garda� collected CCTV from various locations in the area.
(4) On 3 April 2022 Garda� conducted a specialist interview with the complainant.
(5) On 2 August 2022 Garda� contacted the appellant to make arrangements to interview him under caution. For reasons due to the non-availability of the appellant and/or his solicitor, this interview did not take place for a number of months.
(6) On 2 October 2022 Garda� arrested the appellant, the appellant having attended the Garda station voluntarily, accompanied by his mother and his solicitor, where he was interviewed in relation to the complaint. DNA and fingerprint samples were taken.
(7) On 9 April 2023 the investigation file and all exhibits were handed over to Detective Garda A.
(8) In October 2023 the file was passed to a Juvenile Liaison Officer.� The appellant was eventually deemed unsuitable for juvenile diversion on 25 May 2024.
(9) On 17 July 2024 Detective Garda A handed over the investigation file and all exhibits to Detective Garda B
(10) On 9 October 2024 a further interview was held with the appellant where the results of the forensic reports were put to him.
(11) On 6 December 2024 the appellant was charged with rape.
(12) On 6 January 2025 the Book of Evidence was served on the appellant and the matter was sent forward to the Central Criminal Court.
(13) On 25 February 2025 the matter was before the Central Criminal Court in the list to fix dates and a trial date of 18 June 2025 was assigned to the case.
The Appellant: -
4. �The appellant grew up without any contact with his father.� He lives with his mother with whom he has a close relationship.
5. In 2012, at the age of 5, the appellant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Asperger's Syndrome.� This diagnosis was confirmed by a Consultant Psychiatrist at the Lucena Clinic on 8 May 2013.
6. At primary school the appellant was allocated a Special Needs Assistant which he had throughout his primary education.
7. The appellant attended secondary school starting his first year in 2019.� In secondary school the appellant did not have a one-to-one Special Needs Assistant.� The appellant's behaviour deteriorated and he became more disruptive and hyperactive in class.� In early 2022 the appellant left secondary school.�
Judicial Review Proceedings: -
8. On 10 April 2025 the High Court (Gearty J.) granted leave to the appellant to seek, inter alia, the following reliefs by way of judicial review: -
(I)����� An order of prohibition or in the alternative an injunction by way of an application for judicial review prohibiting or restraining the pursuit of a prosecution entitled Director of Public Prosecutions v C.P. under Bill of Indictment No. CCDP0013/25 DPP Case Number 2024/220387.
(II)��� A stay pursuant to Order 20(8)(b) of the Rules of the Superior Courts 1986, as amended, restraining or staying further prosecution under Bill of Indictment No. CCDP0013/25 DPP Case Number 2024/220387 pending determination of the proceedings.
9. The basis for the application for judicial review was prosecutorial delay on the part of the respondent.�
10. The statement of grounds, under the heading Grounds for Relief states: -
"36.� The continued prosecution of the said charge would be in breach of the applicant's fundamental constitutional right to fair procedures in that the applicant has been denied the right to be dealt with within the jurisdiction of the Children Act, and where, had a prosecution been initiated within two years of the complaint, he would have benefitted from disposal of the offences under the law applicable to a child offender."
and: -
��������� "Aspergers, ADHD and the anxiety and stress of delayed prosecution.
��������� 38.���� Having regard to the particular circumstances of the applicant and his particular vulnerability to stress and anxiety, including his diagnosis with Aspergers and ADHD, and other matters set out in various reports and correspondence exhibited herein, the prosecutorial delay herein is not tolerable.
��������� Delay resulting in prejudice in the conduct of the defence
��������� 39.���� The delay in prosecuting the applicant may result in him being sentenced to a custodial term in an adult prison should he be found guilty on either offence."
and: -
��������� "42.� A number of young people were in the immediate vicinity of the complainant and the applicant immediately before and after the alleged offence.� There are grounds for concern that the prospects of identifying them all and procuring relevant and reliable evidence from them has diminished with the passage of time."
Judgment of the High Court
11. In her judgment (delivered on 31 October 2025) the trial judge (Gearty J.) dismissed the application.�
12. Having considered the chronology of the investigation, charge, and prosecution the trial judge concluded: -
".... I have no hesitation in finding that this was, overall, a blameworthy delay which amounted to a breach of the applicant's constitutional right to a trial with due expedition.� The materials necessary for the prosecution were, or should have been, in the possession of garda� by October 2022 and even this interview date was relatively late when one considers that the garda� were interviewing a teenager accused of rape over six months earlier."
13. Having found blameworthy prosecutorial delay on the part of the respondent the Trial Judge applied the principles as set out in a number of judgments of the Supreme Court.� In Donoghue v Director of Public Prosecutions [2014] 2 IR 762 Dunne J. stated (at para. 52): -
".. Once there is a finding that blameworthy prosecutorial delay has occurred, a balancing exercise must be conducted to establish if there is by reason of the delay something additional to the delay itself to outweigh the public interest in the prosecution of serious offences ... The nature of the case may be such that notwithstanding the fact that a person who was a child at the time of the commission of the alleged offence may face trial as an adult, the public interest in having the matter brought to trial may be such as to require the trial to proceed. In any given case a balancing exercise has to be carried out in which a number of factors will have to be put into the melting pot, including the length of the delay itself, the age of the person to be tried at the time of the alleged offence, the seriousness of the charge, the complexity of the case, the nature of any prejudice relied on and any other relevant facts and circumstances .."
14. The trial judge noted that the above passage was cited, with approval, in Doe v. The Director of Public Prosecutions, the Attorney General and the Irish Human Rights and Equality Commission [2025] IESC 17. In Doe the Supreme Court upheld the decision of Simons J. who made anonymity orders pursuant to the inherent jurisdiction of the Court as set out in Gilchrist v Sunday Newspapers Limited [2017] 2 IR 284.�
15. The trial judge further stated: -
"3.5� In Doe, the respondents accepted that there was blameworthy delay (at the Supreme Court stage) and O'Malley J. set out the test: 'In the particular context of offences alleged to have been committed by children, the defendant will not be required to go so far as to demonstrate that the delay has had the effect of making a fair trial impossible or unduly difficult, but they will have to show that it has caused them prejudice to the extent that they should not be put on trial.'"
16. The trial judge considered the protective measures provided for in the Children Act which the appellant submitted were no longer available to him.� The trial judge held that, following Doe, anonymity would be available to the appellant.�
17. On the issue of sentencing the trial judge stated: -
"5.2� Other Children Act issues are all dealt with in Doe, where the Supreme Court (at paragraphs 45 - 47) quoted the judgment of Simons J. at length.� O'Malley J. upheld his analysis that, in summary: if there are convictions in the case, the sentencing judge is obliged to impose sentence on the basis that the offences had been committed by 15 year olds, even though they will be over 18 at the date of sentence; the sentencing court will have a discretion to seek probation reports so the fact that the report is not mandatory is not a significant factor in assessing prejudice to the applicants; similarly, as a matter of practice, a custodial sentence will be a measure of last resort, as it would have been had the applicants been tried as juveniles.� All the same comments apply in this case."
18. On the issue of prejudice arising from the blameworthy prosecutorial delay, the appellant put considerable emphasis on a deterioration of his mental condition as a consequence of that delay. In support of this, the appellant furnished to the High Court a detailed report from Dr. Rioghnach O'Leary, Chartered Forensic and Counselling Psychologist (the "Report").
19. Citing the decision of the Supreme Court in M O'H v The Director of Public Prosecutions [2007] IESC 12 the trial judge stated: -
"7.4...the Supreme Court acknowledges that in an appropriate case, it is helpful to receive medical evidence and that, generally speaking, it is to be expected that there will be increased anxiety if there is a delay in prosecuting an applicant. In the same case, M O'H , Fennelly J concludes 'whether anxiety or stress has been suffered is largely a matter of common sense. I merely say that some evidence is necessary. Here there is none. It is obvious that it is stressful for any individual to have to face criminal proceedings. Some distress is inevitable. There must be evidence of something more than normal, something extra caused by the alleged prosecutorial delay.'" (My emphasis.)
20. Having considered the report, the trial judge concluded: -
"7.6 ... the psychologist finds his symptoms were caused by stress of the trial but stopped short of attributing his symptoms to delay."
and: -
"7.8. The expert medical report does not distinguish clearly between the effects of the allegation of rape on the applicant and the effects of the delayed prosecution on the applicant..."
and: -
"7.10... however, there is insufficient evidence that any of his symptoms were caused by the delay in bringing charges or that such symptoms are now so serious that, on this factor alone, the balance of justice requires that the trial should be prohibited."
21. The trial judge carried out a "balancing exercise" as referred to by Dunne J. in Donoghue. She concluded: -
"9. The factors to be balanced begin with the delay, which was considerable. It has caused additional stress to a vulnerable accused simply due to the length of the delay itself. The prejudice to the applicant as a child accused is limited, however, as the protections of a lesser sentence and anonymity will be afforded to him in accordance with Doe. Similarly, the question of missing witnesses, if any, does not carry much weight given the facts of the case, there is no evidence that there were any witnesses of significance, capable of exculpating the applicant, in the group to which he refers further, this is a factor which is better dealt with at the trial."
and:
"9.3. The allegation is such a serious one that the public interest in having a trial is a very weighty factor.� This includes the clear interest of the complainant in having her allegation heard and determined."
Notice of Appeal:
22. The bulk of the 15 grounds of appeal focus on the trial judge's interpretation of the report. These grounds can be summarised in ground (vi) which states:
"The learned trial judge erred in law in applying an incorrect legal test to the evidence of the psychologist as to the applicant's vulnerability and psychological condition. In particular, the learned trial judge failed to take into account the fact of the applicant's vulnerability and the effects of the allegations being made and the effects of delay in the prosecution and the prosecution itself in combination amounted to additional factors of substance to be put in the balance in favour of prohibition, irrespective of the extent which the delay exacerbated the symptoms suffered by the applicant."
23. Amongst other grounds stated were: -
"(xii) The learned trial judge erred in law by failing to consider adequately the prejudicial impact of the failure by Garda� to properly investigate the matter, and in doing so, failing to interview witnesses that may have given rise to a helpful line of defence."
and
"(xiv) The learned trial judge failed to assess adequately the prejudice suffered by the applicant due to the loss of the protections of the Children Act 2001, in particular, the adult sentencing regime that he may now face due to the delay and the loss of rehabilitative sentencing subject to juveniles, in circumstances where custody would have been the last resort."
24. There was no cross-appeal on the trial judge's finding that the respondent had been guilty of blameworthy prosecutorial delay.
Consideration of appeal: ��
25. No issue is taken with the principles applied by the trial judge. These principles are derived from two relatively recent decisions of the Supreme Court which set out with clarity how applications, such as this, are to be determined.
26. There is no direct criticism of the balancing exercise carried out by the trial judge. Rather the criticism is that the trial judge did not give sufficient weight to the professional opinion of Dr. O'Leary in the report. The argument is that had the trial judge done so, that the deterioration in the appellant's mental state and condition together with, and to an admittedly lesser extent, the non-taking of statements of potential witnesses and loss of rehabilitative sentencing, would have outweighed the interests of the complainant and the public importance of having this serious criminal charge go to trial.
27. At the hearing of the appeal the report was considered in some detail. Before setting out the Court's interpretation of the report, a number of matters need to be stated. Firstly, persons such as the appellant facing a serious charge of rape of an underage child cannot but find it very stressful and a source of considerable anxiety. Indeed, one might go further to suggest that if this was not the case it would be indicative of a more serious mental condition. Secondly, the accuracy of the narrative provided by the appellant and his mother to Dr. O'Leary is questionable in certain respects. Thirdly, the appellant had left his secondary school prior to the date of the alleged offence in March 2022.
28. Doctor O'Leary gave an assessment of the appellant's cognitive functioning, stating: -
"9.9 Combining these indices, CP's overall level of intellectual functioning (full-scale IQ) was found to be 70 where it is within the borderline range of cognitive ability where it is surpassed by 99% of adults his age.
9.10 Of note, a FSIQ score of less than 70 indicates the potential presence of intellectual disability."
It was against this background that she gave her report on the appellant's mental status.
29. The trial judge, in considering blameworthy prosecutorial delay, focused on the period of two years that elapsed between the complaint and the appellant being charged, that is March 2022 to 6 December 2024, noting "...the vast majority of this two year period was taken up with months of inactivity." �She noted that "the materials necessary for the prosecution were, or should have been, in the possession of the Garda� by October 2022".
30. The appellant reported to Dr. O'Leary that in the days following the accusation he began to ruminate on a daily basis about the allegation and that "throughout the day every day, he worried about potentially being sent to prison and people in his community viewing him as 'a rapist'".� He reported that, over time, he began to experience significant anxiety from these thoughts and recalled feeling physically tense in his body, having heart palpitations, dizziness and a sense of impending doom.� He reported that in the months following October 2022, when he gave his statement to the Garda�, he became further preoccupied with thoughts of potential incarceration and being branded a sex offender, and experiences increasing feelings of anxiety and hopelessness.
31. The report discloses that in the latter part of 2022, the appellant was suffering sleep difficulties and anxiety. He had heart palpitations which led to his attendance at the A&E Department at Tallaght Hospital in December 2022. This would appear to have been a "panic attack". These health issues were occurring within months of the date of the alleged offence, not during a period that could be classified as being blameworthy prosecutorial delay.
32. It would appear that at the beginning of 2024, the appellant developed signs of OCD described in the report as: -
"7.19 [CP] reported that at the beginning of 2024, he developed other symptoms of poor mental health. He reported that he began to switch lights on and off multiple times, touch certain items repeatedly and plug his phone charger in and out of the socket repeatedly. [CP] further reported that he refused to walk on grates on the footpath and he spilled out drinks when he opened them and threw away the tops of chocolate bars."
33. Doctor O'Leary did find that the appellant met a number of diagnostic criteria for OCD, however, the report states (in bold type): -
"12.13 It is important to note that while [CP] evidences symptoms of generalised anxiety disorder and major depressive disorder, he does not meet full diagnostic criteria for these mental health conditions."
34. In the "Conclusions" sections of the report the following is stated: -
"13.24 In sum, based on all data collected as part of this assessment, it is evident that CP's mental health and quality of life have significantly deteriorated since being accused of the alleged offence in March 2022 and increasingly so as more time has passed prior to the case's finalisation" [Emphasis added.]
35. It should be noted that the date referred to is March 2022. More particularly, the report states: -
"13.27 Lastly, it is worth noting that it is possible that in the event that [CP] was prosecuted at an earlier point in time, he may not have developed panic attacks, insomnia resulting in his disengagement from education and ultimately OCD as these conditions all developed due to his having to psychologically cope with his legal case and uncertainty regarding same, over a protracted period of time."
36. A number of observations need to be made. Firstly, Dr. O'Leary refers to a "possibility" rather than a "probability" of there being a causal link between the appellant's mental condition and the delay in prosecution. �Secondly, the insomnia and panic attacks (attendance at Tallaght Hospital in December 2022) occurred within months of the date of the offence and not within a period of blameworthy prosecutorial delay. Thirdly, "disengagement" from education occurred before the date of the alleged offence. This would appear to leave only OCD as commencing during the period of blameworthy delay. However, the signs that his OCD are set out at para 31 above. To address this condition, cognitive behavioural therapy was advised.� The appellant was referred to Jigsaw, a mental health service for children and teenagers, but after initial screening and assessment sessions he disengaged from that service having attended only one intervention session.
37. The central pillar of the appeal - reflecting ground (vi) - was that the trial judge ought to have put into the balance the effect on the appellant of the allegation having been made, as well as the effect on the appellant of the delay in the prosecution.� It was - so it was said - an impossible task for Dr. O'Leary to have separately assessed the impact on the appellant of the accusation and the prosecutorial delay.� Accordingly - so the argument went - the trial judge ought to have taken into consideration the entirety of the effect on the appellant of the accusation and delay, irrespective of the extent to which the delay had exacerbated the symptoms. �I have no hesitation in rejecting this argument.� The fundamental premise of the appellant's argument that he should not have to face a trial is that his constitutional right to a fair trial has been infringed.� It follows that the relevant consideration is the consequence of that infringement.�
38. Having analysed the report, I am in full agreement with the conclusions reached by the trial judge.
39. The trial judge correctly carried out a "balancing exercise" She stated: -
"8.5...the public interest in prosecuting this offence is very strong indeed, and not just for the victim of a rape offence. ..."
40. For the purposes of the balancing exercise, notwithstanding the terms of the report, the trial judge accepted that there had been some aggravation of C.P.'s mental condition and symptoms of more serious problems. The trial judge stated: -
"9.5 The applicant retains his anonymity, and he will have the benefit of the provisions regarding the sentencing of children should he be convicted. While the applicant has vulnerabilities, and they make the trial difficult for him, he has not established that they were caused by the delay nor has he shown that the delay has exacerbated his difficulties significantly more than the complaint itself had done, though it is accepted that there has been some aggravation of his condition and even symptoms of more serious problems. These are matters that the trial judge will keep under review and the applicant can be assured of a fair trial. These matters do not outweigh the public interest in this rape case going to trial."
41. In my view, the appellant has not identified any prejudice to him from what he alleges is the failure of the Garda� to take statements from other people who were in the vicinity of where the alleged offence occurred. Clearly, no person other than the appellant and the complainant, witnessed the alleged rape. What others in the vicinity at the time may or may not have said in statements is a matter of speculation. At the end of his Garda interview in October 2022, the appellant was invited to pass on the details of any witnesses through his solicitor and the Garda� would speak with them. In any event, this is primarily a matter for the trial judge.
42. The appellant submitted that were he to have been convicted and given a custodial sentence as a child, he would have been sent to a juvenile prison where rehabilitation services would have been available to him.� Now, should he be convicted and sentenced, he will be detained in an adult prison where, he submits, such services are not available. There are a number of difficulties with this submission. Firstly, it assumes a conviction and requires speculation as to the length of a custodial sentence if given. It is difficult to know how long the appellant would have spent in a juvenile prison had there been no prosecutorial delay. Secondly, there has been no evidence as to what relevant rehabilitation services are available in a juvenile prison as opposed to an adult prison.
43. The trial judge was clear that the issues raised by the appellant were more properly ones for the trial judge. Such an approach is in keeping with the decision of the Supreme Court in Director of Public Prosecutions v P O'C [2006] 3 IR 238 where Denham J (as she then was), delivering the judgment of the Supreme Court, stated at p. 247: -
"Thus in the course of the trial matters may arise, evidence may be given, which renders a trial unfair, or the process unfair. In these circumstances, the trial judge retains the jurisdiction or preventing the trial from proceeding."
44. No submissions were advanced by the appellant as to why leaving matters to the trial judge was not the correct approach to address issues raised in this application.
45. �By reason of the foregoing, I would dismiss the appeal.
46. As this judgment is being delivered electronically, I am authorised to record the agreement of Allen and Butler JJ. with it.
p>Result: Appeal Dismissed