Information for the
vulnerable victim, witness and defendant
Recent signficiant cases......
The Supreme Court case of Brophy v The Director of Public Prosecutions (10th February 2026) considers the use of s.75 Children Act 2001 in determining jurisdiction where a defendant is a child at the time of the offence but is an adult at the time of arrest and charge.
Click for Summary and Link to case below
The Court of Appeal case of 'Oscar' v DPP (16th December 2025) examined the constitutionality of s.3 Criminal Law ( Sexual Offences) Act 2006 and the issues regarding the possiblity of mistake in relation to the relevant ages contained in section....
The Supreme Court case of DPP v CC (13th March 2025) has ended the use of reviews as a sentencing provision....
In DPP v AM (2nd May 2025), the Supreme Court restricted the parameters for the disclosure of counselling notes under s.19A Criminal Evidence Act 1992...
The case of DPP v PB (13th March 2025) addressed the issue of anonymity and child defendants who 'age out' during their criminal proceeedings allowing the child to retain their anonymity.....
Brophy v The Director of Public Prosecutions,
Ireland, and the Attorney General [2026] IESC 7
Summary by Aoife Doheny
Date of judgment: 10th February 2026
This is a case concerning children who “age out” as defendants in the criminal justice system.
Facts
Mr. Brophy was alleged to have committed a robbery as a 17-year-old but was not charged until he became an adult. He was charged with acting as a lookout while an adult accomplice stole from the shop’s cash register.
Under section 75 of the Children Act 2001, a judge may summarily dispose of any case involving a child charged with an indictable offence, and the Director of Public Prosecutions (the “DPP”) cannot veto such a decision.
However, since Mr. Brophy had turned 18, the protection afforded by section 75 was no longer applicable. The DPP declined to consent to summary trial, with the result that Mr. Brophy was sent forward for trial on indictment.
Issue
Mr. Brophy’s central argument was that, since he was a person alleged to have committed a crime as a child, his exclusion from section 75’s benefit was unjustified and unlawful discrimination contrary to Article 40.1 of the Constitution and Articles 6, 8 and 14 of the ECHR. Furthermore, he argued that the core purpose of s.75, beyond simply setting out the appropriate method of trial and punishment for a child, was to account for the fact that a defendant who committed a crime as a minor faces a lesser degree of responsibility.
High Court
In its judgment, the High Court noted that “while age is not an automatically suspect ground, differences in treatment based on age could be suspect.”[1] This is because age is “immutable in sense that it cannot be changed by choice.”[2]
However, it went on to rule that the primary purpose of s.75 is to shield children from a court environment which is primarily designed for adults. In essence, it allows judges to treat their cases in a “child-sensitive manner”.[3] Therefore, the exclusion of the “aged-out” class of children from s. 75 is not “arbitrary, capricious or irrational.” It simply reflects the intended purpose of the statute.
Findings of Justice O’Malley of the Supreme Court
The High Court’s decision was affirmed in the Supreme Court.
Justice O’Malley’s discussion began by noting that there is no constitutional right to summary disposal in the District Court. A judge’s decision to accept or refuse jurisdiction is solely based on the gravity of the individual case and potential penalty.
O’Malley J conceded that s. 75 reflects the legislature’s understanding of the lesser culpability of children, their greater capacity for rehabilitation, and that persons aged 18 and over are generally to be considered independently responsible for their own lives and decisions. Therefore: “Both the gravity of the offence and the culpability of the accused are fixed by reference to the date of the offence, and do not increase as the accused gets older.”[4]
However, the Court then turned to sentencing, noting that: “The sentence is imposed for an offence committed by a child, but it has to take account of the person as they are at the time of sentence.”[5] The purpose of s. 75 is to create special procedures for children to reduce the stress they face in criminal justice settings and improve their chances of rehabilitation. Lesser culpability is therefore not the dominant factor. Rather, s.75 is concerned with the determination of the appropriate venue and mode of trial, and therefore could not apply in Mr. Brophy’s case.
[1] Brophy v DPP [2026] IESC 7, [41].
[2] ibid.
[3] ibid, [47].
[4] ibid, [117].
[5] ibid, [119].
Oscar (A Pseudonym) v The Director of Public Prosecutions [2025] IECA 278
Summary by Aoife Doheny
Date of judgment: 16th December 2025
Judgment delivered by Kennedy J.
Facts
The appellant (aged 15 at the time of the offence) and complainant (aged 12) met and engaged in sexual intercourse after communicating online via Snapchat. The appellant made several video recordings on his phone during the act.
The complainant’s family reported the incident to An Garda Síochána, leading the appellant to be charged under section 3 of the Criminal Law (Sexual Offences) Act 2006 (defilement of a child under 17) and s 3 of the Child Trafficking and Pornography Act.
Issues
The appellant contended that the 2006 Act should be interpreted to mean that a 15-year-old who reasonably believes that the person with whom he has sexual intercourse is 15 years old is not guilty of an offence. The appellant contended that the Act would be unconstitutional if no such interpretation were made, as it necessarily criminalises the appellant’s conduct in making his belief as to the complainant’s age irrelevant.
There was also a separate issue on the grounds of culpable prosecutorial delay.
Findings
Delay
The Court of Appeal rejected the appellant’s arguments on the grounds of delay. In judicial review proceedings, the High Court had found that 2 years and 2 months elapsed between the date of complaint and the charge, which amounted to culpable prosecutorial delay. However, it reiterated the long-established principle that while authorities must make special efforts to ensure speedy trials for young people, culpable prosecutorial delay of itself is insufficient to prohibit a trial.
The Court of Appeal noted that there is very high public interest in the prosecution of sexual offences against a child due to the ‘seriousness’ of the crime. Furthermore, this seriousness is not mitigated by the appellant’s belief that the complainant was 15 years old. This belief is entirely subjective, while a determination of seriousness is necessarily an objective examination.
The court emphasised the fact that the child complainant was 12 years old, holding that it is an intrinsically serious offence to have sexual intercourse with a 12-year-old, and also to film the act. In terms of prejudice, it noted that the appellant will retain his anonymity during the proceedings, so the contention of potential prejudice does not apply.
Reasonable mistake
The appellant argued that he should be allowed to avail of the defence of reasonable mistake so as to bring him within the provisions of section 3(8) of the 2006 Act, which in turn provides the defence of consent. The Court rejected this argument.
The defence of reasonable mistake can only be invoked where the complainant was at least 15 years old and was within two years of age of the appellant. Similarly, the defence of consent is only available where the complainant is at least 15 years of age, and actually consented to the sexual activity.
On the facts of this case, neither defence could apply, since the complainant was 12 years old and thus three years younger than the appellant. She legally could not consent to sexual intercourse. The Court noted: “These are conditions precedent to the invocation of the defence [of consent] and are factual matters unrelated to any mental element on the part of an accused person.” [Para 96]
Fresh evidence
Finally, the Court held that no new neuropsychiatric and neuropsychological reports could be introduced on appeal, since judicial review proceedings should be confined to grounds upon which leave was granted. The appellant could not avail of the special grounds outlined in Lynagh v. Mackin [1970] IR 180, since the report could have been obtained with due diligence prior to the High Court hearing.