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Cite as: [2019] IEHC 671

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THE HIGH COURT

JUDICIAL REVIEW

[2019] IEHC 671

2018 No. 291 JR

BETWEEN:

N.S.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Ms. Justice Murphy delivered on the 16th day of October, 2019

1. This is an application for an order of prohibition, restraining the respondent from further

prosecuting the applicant on fourteen charges of indecent assault, pending before Dublin

Circuit Criminal Court on Bill No. DUDP 95/2018. The charges span the period from 1st

September, 1962 to 31st October, 1963, some fifty-five years ago. All the charges relate

to a single complainant.

2. The applicant submits that there are instances of specific and incurable prejudice, which

create a real and serious risk that the applicant will not receive a fair trial. The applicant

submits that by reason of the lapse of time and the loss of material evidence, the

prosecution will amount to bare assertion against bare denial. The applicant submits that

these are exceptional circumstances, which entitle him to an order of prohibition.

3. The respondent submits that a very high threshold must be reached for the court to find

that there are wholly exceptional circumstances, such that it would be unfair to put the

applicant on trial. The respondent submits that this threshold has not been met by the

applicant. The respondent further submits that the issues raised by the applicant are

matters for the trial judge, to be dealt with through appropriate rulings and directions.

Background facts

4. In order to protect the anonymity of the complainant, any reference to people or places,

from which the complainant may be identified, have been excluded.

5. The complainant alleges fourteen instances of indecent assault by the applicant between

1962 and 1963 when she was aged approximately 8 years old. The applicant is a first

cousin of the complainant. It is alleged that the offences were committed in the

complainant’s family home, on occasions when the applicant visited with his mother. It is

alleged that the offences were committed at a time when a number of adults and young

children were present in the house. The complainant also alleges that on one occasion in

the applicant’s family home in the summer of 1963 he exposed himself to her from the

bathroom window while she was sitting in the garden below. While not the subject of any

charge, this allegation may be of relevance in the context of assessing the credibility of

the complainant.

6. In her first statement dated 14th April, 2016, made some 53 years after the offences are

alleged to have been committed, the complainant states that in or around 2001, when

she was in her forties, she contacted the Gardaí at Kells Garda Station, and informed a

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Garda that she had been sexually abused by the applicant. She also informed the Garda

that she had received information from her cousin, the applicant’s sister, of allegations

relating to another child. She was invited to make a complaint at that time, but declined

to do so. In her statement of proposed evidence, the complainant explains her failure to

make complaint as being due to her unawareness of the damage that had been caused to

her and her fear that she would not be listened to. She states that she informed the

Garda that if the child’s case progressed, or if another allegation of abuse was

forthcoming, that she would make a statement. A further reason for the complainants

delay in making a statement is that she did not wish to make a statement while her

cousin, the applicant’s sister, was alive. The complainant states that she was close to the

applicant’s sister, who died in April 2016. The applicant was charged on 10th November,

2017, approximately 55 years after the alleged offences.

7. Having regard to the relevant law at the time of the alleged offences, these alleged

offences are not arrestable offences in respect of which the applicant could be arrested

and questioned. However, In February, 2017, the applicant engaged in a voluntary

interview, during which he denied the allegations. In the interview, the applicant put

forward the following:-

that from September, 1962, he was in his final year at university and spent every

weekday evening studying in the library;

that he only attended at the complainant’s family home when he had a car, and

would drop his mother over to the house, save for one occasion the night before he

travelled to the United States with his mother;

that he is at a disadvantage as his sister is unable to confirm that he did not attend

the complainant’s family home during this period;

that the complainant did not visit the applicant’s family home while he was present,

and that his sister would be in a position to confirm that this was the case; and

that as a result of an accident when he was twelve or thirteen, that he was

diagnosed with erectile dysfunction by his doctor, and that his mother and sister

were aware of this.

8. On 16th April, 2018, leave for judicial review was granted by Noonan J.

Submissions on behalf of the applicant

9. The applicant submits that owing to the passage of time, there are a number of instances

of specific and incurable prejudice, which create a real and substantial risk that he cannot

receive a fair trial. The main arguments set out by the applicant relate to the absence of

witnesses who, he submits, would have been of assistance to him in making his defence.

These witnesses are now deceased. The applicant also relies on missing documentation,

without which, he submits, he cannot fairly be tried. The applicant also submits that the

trial should not proceed, on grounds of his ill health. The applicant avers that he is a man

of advanced years, having been born on 27th November, 1939. He avers that as a result

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of suffering a heart attack in 1988, for which he underwent quadruple by-pass surgery,

that his heart function is greatly reduced and needs to be monitored, and that he is on

medication.

Missing evidence

Applicant’s mother

10. The applicant submits that his mother would have been in a position to attest to a

number of matters that support his defence, but that she cannot do so, owing to her

passing in July, 1984. The applicant submits that she would have been able to attest to

the following:-

that the applicant did not attend the complainant’s house in 1962 and 1963, and

that it was his sister who used to attend with her during this period;

that the applicant was undergoing his final year of an undergraduate degree in

University College Dublin from October, 1962 to May, 1963;

that following the completion of his exams in May, 1963, the applicant travelled to

London to work, as he had done the previous year in the summer of 1962. The

applicant submits that his mother would have been able to attest to the fact that

while in London, the applicant obtained work with a construction company from

June to August, 1963;

that owing to his travels to London, he was absent from the jurisdiction during the

period of the allegations, spanning the entirety of the summer of 1963. The

applicant submits that his mother would have been able to attest to the fact that he

returned home from London on only one occasion, during the summer of 1963, for

the purpose of attending his conferral ceremony, and that he only returned to

Dublin in August, ahead of his travels to the United States in September that year;

that the applicant lodged with a relative while in London during the summer of

1963, as he had done the previous year during the summer of 1962; and

that his mother was one of the few people who was aware of his erectile

dysfunction diagnosis, and that she would have spoken to his treating doctor.

11. The applicant avers on affidavit dated 12th April, 2018 that that his mother would have

been able to give additional material evidence relating to the allegation of indecent

exposure alleged to have been perpetrated by the applicant, during the complainant’s

stay at the applicant’s family home. The applicant denies that the complainant ever

stayed at the house while he resided there, and that his mother would have been in a

position to give evidence in this regard. The applicant also submits that his mother could

have given evidence in relation to the layout of his house, which he submits contradicts

the complainant’s account of the alleged events. The court has no evidence as to whether

or not the house is structurally the same as it was at the time of the alleged events.

The applicant’s sister

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12. The applicant submits that his sister, who passed away in April, 2016, would have been in

a position to attest to the above matters, either in addition to or separately from his

mother. The applicant submits that his sister would have been able to give evidence in

relation to the following:-

that it was she who attended the complainant’s family home with their mother,

and that such visits took place on Fridays and not on Thursdays, as is suggested by

the complainant;

that she would be able to confirm that the applicant was absent from the

jurisdiction during the period in which the allegations against him have been made;

and

That while the applicant was in his final year at UCD, that he spent every weekday

evening studying in the UCD library.

13. The complainant’s statement includes an assertion that the applicant’s sister informed the

complainant that she had read her mother’s diary, and that she had enquired of the

complainant as to whether the applicant had ever abused her. The complainant asserts

that the diary entry did not detail what had happened, but referred to the worst day of

her (mother’s) life, being the day when a letter arrived from her brother (the father of the

complainant and uncle of the applicant). The applicant submits that this assertion is

inconceivable; that not only would his sister not have informed the complainant of this,

because of the close relationship that he enjoyed with his sister, but also that he would

have been informed had such a conversation with the complainant taken place. The court

has no information as to the current whereabouts of this diary, which appears to have

been in his deceased sister’s possession.

The applicant’s doctor

14. The applicant explains on affidavit that he had an accident at the age of twelve or

thirteen, which led to a diagnosis of erectile dysfunction. The applicant avers to treatment

by a local doctor who he continued to attend until the age of twenty-three, at which time

he emigrated with his mother to the United States. The applicant’s doctor retired to

England and died in 1974. His daughter, took over the practice, and the applicant avers

that he contacted her in 1994 when he returned to Ireland temporarily. He avers that he

contacted her for the purpose of obtaining his medical records but that these efforts were

unsuccessful. The applicant submits that these medical records would support his

defence, but that given the antiquity of the records, it is unlikely that they would have

been retained. The applicant avers that he has been attending another practice in the

South-East since approximately 2003, and avers that on one occasion, he received a

prescription for Cialis.

The applicant’s relatives

15. The applicant submits that he stayed with a relative while he was in London, during the

summer of 1962 and 1963, who is now deceased. The applicant submits that this relative

would have been in a position to confirm:-

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That he was not in the jurisdiction during the summer of 1963,

that he only returned to Ireland for the purpose of attending his conferral

ceremony; and

that he returned to Dublin in August, 1963, in advance of his travels to the United

States.

16. The applicant submits that he visited other relatives in the United States on multiple

occasions during his travels. These relatives, the complainant asserts, received a letter

similar to the one she claims that the applicant’s mother received from the complainant’s

father. The applicant submits that such relatives, now deceased, never raised any issue

with the applicant during his visits.

Documentary evidence

17. The applicant avers that his medical records, as mentioned above, which detail his

diagnosis of erectile dysfunction, are not available to him, due to the lapse of time

between the alleged offences and the making of the complaint. The applicant also avers

that documents and records which would have confirmed his absence from the jurisdiction

are unavailable due to the passage of time. He avers that his solicitor has been in contact

with the construction company that he worked for, while in London from June to

September, 1962, and again from May to August, 1963. However, he claims that his

solicitor was informed that documents of this antiquity were not retained, and were no

longer available. He was informed that this was in part, owing to the fact that the

construction company was purchased by another company, and is now operating under a

different name.

Specific prejudice and the Omnibus principle

18. The applicant submits that he has identified a number of islands of fact, which, it is

submitted, would have been capable of corroboration and open for rebuttal, had the

allegations been advanced and prosecuted without a lapse of some 55 years. The

applicant submits that he engaged with the investigative process. The fact that

allegations of sexual abuse are usually alleged to have taken place in private, shifts the

focus of the defence in such matters to testing the complainant’s credibility, in respect of

collateral matters.

19. It is submitted that by reason of the long delay in making complaint, the applicant is

deprived of the ability to undermine in a meaningful way, the credibility of the

complainant on collateral matters. The applicant submits that the facts of this case bring

this matter within the exceptional category of cases, which result in a real and serious risk

of an unfair trial. The applicant submits that in PO’C v DPP [2000] 3 IR 87, Hardiman J.

stressed the importance of islands of fact, stating that every effort must be made “to try

to avoid a situation where there is no island of fact, and where bare assertion can be

countered only by bare denial.” The applicant also cites the below passage from Hardiman

J.’s judgment:-

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“The effect of documentary, physical or forensic evidence, where it exists, is to

provide some basis on which the part of a case which depends on mere assertion

can be assessed and tested. Inevitably there will be a certain number of criminal

cases, and far fewer civil cases, in which no such evidence exists. In such a case

each side will normally look to the surrounding circumstances: the prosecution to

see whether there is corroboration or at least evidence consistent with the

allegations being true, and the defence to see if there is material with which the

complainant’s story can be contradicted, even on a collateral matter, or his

credibility challenged…If a defendant who is innocent is exposed to a trial where the

only evidence is unsupported assertion and the only defence bare denial, his

position is indeed perilous. Where these cases have been successfully defended it

has, in my experience, always been because it has been possible to show that the

complainant’s account is inconsistent with the objectively provable facts relevant to

the allegations, or that the complainant has made other allegations against other

people lacking in credibility.”

20. The applicant submits that the complainant has been unable to support the assertions

advanced by her, either by way of oral or documentary evidence, and he submits that this

inevitably and fundamentally prejudices his defence. It is submitted that the extensive

delay is compounded by the fact that the allegations relate to a sole complainant, who

was approximately eight years of age at the time. It is submitted that these facts serve to

magnify the effect of the specific prejudice that has been identified and complained of.

21. It is submitted on behalf of the applicant that in the cases of JT v Director of Public

Prosecutions [2008] IESC 20 and PT v Director of Public Prosecutions [2008] 1 IR 701,

Denham J. applied the “omnibus principle”. This concept was referred to by McCracken J.

in DK v Director of Public Prosecutions [2006] IESC 40, where it was stated that while

none of the factors in that case taken individually justified prohibiting the trial, the court

could have regard to their “cumulative effect”. The applicant submits that in PT v DPP,

Denham J. upheld the High Court judgment of Dunne J., which granted an order of

prohibition in relation to allegations of abuse, which dated back 40 years. The defendant

was in his eighties and in bad health. The court held that it was no single factor which

rendered the case exceptional, but that it was “the cumulative effect of all the factors

which bring this case within the category of an exception requiring a balancing exercise to

be conducted by the court.”

22. The applicant submits that in MS v Director of Public Prosecutions [2015] IECA 309,

Hogan J. while emphasising the importance of illustrating specific prejudice, accepted that

certain prejudice must be presumed to arise, once a significant period of time elapses.

23. The applicant cites BS v DPP [2017] IECA 342, in which the Court of Appeal prohibited a

trial involving sexual assault and rape allegations from 1970, in which the sole

complainant alleged that she was raped by a farm labourer, who was employed on the

family farm. A contemporaneous complaint had been made to the complainant’s mother,

who was since deceased. The complaint had been passed on to the complainant’s father,

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who allegedly dismissed the applicant on foot of this disclosure. The applicant denied the

complaint, and averred that if the complainant’s father were still alive, he would have

been able to attest to the fact that he had ceased working for him on very good terms.

The applicant also argued that two other men who worked on the farm, both deceased,

would have been in a position to assist his defence. In refusing the prohibition, the High

Court found that there was not enough evidence to suggest that either of the farm

labourers would have anything of significance to say. The court also took the view that

the missing evidence of the father was not so prejudicial as to give rise to a real or

serious risk of an unfair trial. On appeal, the Court of Appeal overturned the High Court’s

refusal. In delivering the majority judgment, Sheehan J. held that the appellant was

“undoubtedly disadvantaged” by the absence of three potential witnesses, and that this

was particularly important in a case where credibility was likely to be a deciding factor. In

observing that the trial, if it was permitted to proceed, would take place 47 years after

the alleged event, Sheehan J. referred to the previous decision of Hogan J. in II v JJ

[2012] IEHC, where it was held that by reason of the passage of time, the evidence

available had “become eroded to the point that a jury is left to choose between two

different narratives advanced by a plaintiff and the defendant”, and that there was “a real

risk that justice will be put to the hazard.”

Delay

24. The applicant submits that the test to be applied in deciding whether a trial is to be

prohibited on grounds of delay, is the test as stated by Murray CJ. in SH v DPP [2006] 3

IR 575:-

“The test is whether there is a real or serious risk that the applicant, by reason of

the delay, would not obtain a fair trial, or that a trial would be unfair as a

consequence of the delay. The test is to be applied in light of the circumstances of

the case.”

25. The applicant submits that inherent in any analysis of whether or not the accused is at

risk of an unfair trial, is the question of whether any unfairness is capable of being cured

by appropriate rulings and directions of the trial judge. The applicant submits that the

High Court retains a duty to prohibit a trial where exceptional circumstances exist, where

the applicant has engaged with the potential evidence in a specific and purposeful way, in

order to identify the risk. It is submitted that the present case is an exceptional case, in

which the court should exercise its discretion to prohibit prosecution.

General prejudice

26. It is submitted that the delay of more than 55 years constitutes an exceptional factor, and

renders a fair trial of the applicant impossible. It is also submitted that such delay in and

of itself, even without the identification of specific prejudice, may be a sufficient basis in

itself to prohibit a trial. The applicant submits that this position has been repeatedly

highlighted in case law, and makes specific reference to two cases. The applicant cites PC

v DPP [1999] 2 IR 25 in which it was stated that:-

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“…the delay may be such that, depending on the nature of the charges, a trial

should not be allowed to proceed, even though it has not been demonstrated that

the capacity of the accused to defend himself or herself will be impaired.”

The applicant also cites PO’C v DPP [2000] 3 IR 87, where Hardiman J. stated that:-

“…there may be a lapse of time so gross that, in the circumstances of a particular

case, it is open to the court to conclude that the lapse of time of itself gives rise to

a real risk of an unfair trial.”

27. It is submitted that in a case of this antiquity, where the applicant’s only defence is one of

bare denial, that there exists a very real and substantial risk that the applicant would not

receive a fair trial. It is submitted that on the facts, that the delay is of itself so excessive

as to deprive the applicant of his ability to properly defend himself, and that the prejudice

suffered, while unavoidable and incurable, cannot properly be dealt with by the trial

judge.

Submissions on behalf of the respondent

General principles and delay

28. The respondent submits that the principles applicable to cases of this nature are well-

settled; that delay, in itself, is not a sufficient ground to prohibit a trial. The respondent

highlights that in recent jurisprudence, a more stringent test for prohibition has been

applied, such that the remedy is now truly exceptional. It is submitted that the applicant

has not met the threshold for an order of prohibition to be granted.

29. The respondent submits that since the case of SH v DPP [2006] 3 IR 575, it is no longer

a requirement for the court to analyse the reason(s) as to why a complainant delayed in

making the initial complaint to the Gardaí, as the courts take judicial notice of the

inherent difficulties in coming forward to report child sexual abuse. The respondent cites

the principles set out by Murray C.J.as follows:-

“47. The issue for the court is whether the delay has resulted in prejudice to an accused

so as to give rise to a real or serious risk of an unfair trial. The court would thus

restate the test as:-

The test is whether there is a real or serious risk that the applicant, by

reason of the delay, would not obtain a fair trial, or that a trial would be

unfair as a consequence of the delay. The test is to be applied in light of the

circumstances of the case.

48. Thus, the first inquiry as to the reasons for the delay in making a complaint need

no longer be made… The inquiry which should be made is whether the degree of

prejudice is such as to give rise to a real or serious risk of an unfair trial. The

factors of prejudice, if any, will depend upon the circumstances of the case.

49. There is no doubt that difficulties arise in defending a case many years after an

event. However, the courts may not legislate, the courts may not take a policy

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decision that after a stated number of years an offence may not be prosecuted.

Also, as the legislature has not itself established a statute of limitations that itself

may be viewed as a policy of the representatives of the People. Thus each case falls

to be considered on its own circumstances.”

30. The respondent submits that SH was applied by the Court of Appeal in MS v Director of

Public Prosecutions [2015] IECA 309, where the relief sought was refused by Hogan J., on

the grounds that no irremediable prejudice had been caused, despite there being a delay

of some 40 years. In delivering his judgment, Hogan J. observed that a balance must be

struck between the rights of the victim and the rights of the accused, and that any

matters that arose could properly be dealt with by the trial judge.

31. The respondent also submits that the trial judge can withdraw a case from the jury in the

event that prejudice arises during the course of the trial, and relies on the decision of PB

v Director of Public Prosecutions [2013] IEHC 401, which was affirmed on appeal.

32. The respondent submits that in the case of Nash v Director of Public Prosecutions

[2015] IESC 32, Clarke J. (as he then was) expressed his view that the trial judge would be best

placed to determine whether or not the trial should go ahead. The respondent submits

that in his concurring judgment, Charleton J. stated that “the trial judge now has the

primary role in decisions of this kind and judicial review is rarely appropriate”.

Specific prejudice

33. The respondent submits that it is speculative for the applicant to assert that his mother

and sister would have given exculpatory evidence on his behalf. Speculation is an

insufficient basis for an order of prohibition. It is asserted by the complainant in her

statement of complaint that the applicant’s mother had become aware of the abuse, as

had the applicant’s sister, who the complainant states was “appalled” to learn of the

allegations. In these circumstances, it is submitted that these witnesses may have been

of no assistance to the applicant. The respondent submits that the prosecution is equally

deprived of this evidence, and that its absence may in fact be advantageous to the

applicant at trial.

34. The respondent submits that there are still a number of witnesses available to the

applicant who can give evidence. In particular, the respondent refers to two siblings of

the complainant, one who stated that he did not see any abuse, and another, who lived in

the family home at the time, and is available to give evidence at trial. The respondent

submits that the complainant will be cross-examined at trial, which will allow for any

issues (including potential prejudice) to be explored.

35. The respondent submits that it is not enough for the applicant to prove theoretical

possibilities in the absence of certain pieces of evidence, and that it has to be proven by

him that the absence of this evidence would be of significance to his case. On this point,

the respondent cites the case of O’C v Director of Public Prosecutions & Ors [2014] IEHC 65

. In that case, the applicant sought an injunction to prevent his prosecution for 159

counts of indecent assault and sexual assault, as well as one count of rape. The

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complainant alleged that the offences were committed between 1981 and 1993, though

she did not make her first statement to the gardaí until 2009. The applicant denied the

claims and sought a prohibition, in circumstances where, he argued, evidence which

would have vindicated his innocence had been lost, owing to the passage of time. On the

evidence, O’Malley J. held that the arguments raised by the accused were not sufficient to

persuade the court to grant prohibition. At para. 65 of her judgment, O’Malley J. stated:-

“…it seems to me that when an applicant seeks to establish that the absence of a

specific witness or piece of evidence has caused prejudice, he or she must be in a

position to point to, at least, a real possibility that the witness or evidence would

have been of assistance to the defence. In other words, I do not believe that it is

sufficient to point to a theoretical possibility that an unavailable witness might have

had something to say that would contradict the complainant’s account and that of

other witnesses.”

36. The respondent submits that on the issue of the applicant’s medical history, in particular,

his heart problems, it would be expected that he would have had to disclose to his

treating doctor any medical history and medication that he was taking when being treated

by his doctor, so that it should be possible to track whether or not he was receiving

ongoing treatment for an erectile dysfunction diagnosis.

37. The respondent submits that it is difficult to see at this juncture, what issues will be of

significance at trial, in advance of that trial, as opposed to those that feature on paper.

On this point, the respondent cites the decision of J(S)T v President of the Circuit Court

and Another [2015] IESC 25, where Denham J. approved of the reasoning in the O’C

case. In that case Denham J. stated that the absence of important witnesses, namely the

school principal to whom complaints had allegedly been made, was not of itself, sufficient

to prohibit a trial. The counselling records of one of the complainants had also been

destroyed, but Denham J. held that in the circumstances, the missing records were not a

basis upon which to prohibit the trial. She did note, however, that each case had to be

considered on its own facts, and that the absence of documents is an issue for the trial

judge, who was best placed to deal with the matter.

38. The respondent submits that in MS v DPP, Hogan J. refused to accept that the

unavailability of witnesses would lead unavoidably to an unfair trial. The respondent

submits that in his decision, he stressed that mere supposition about the loss of potential

evidence is not sufficient to prohibit a trial, and that decisions regarding such prejudice

are best taken by the court of trial, which is best placed to evaluate the run of evidence.

At para. 48 of his judgment, Hogan J. stated:-

“…it is difficult to say that any established or likely prejudice is at such a level as

would justify restraining the trial of the applicant on some ex ante basis. There has

been a growing recognition at various levels throughout the criminal justice system

that it requires something exceptional to justify the prohibition of a criminal trial,

especially if any potential unfairness to an accused is capable of being mitigated by

appropriate rulings in the course of the trial…”

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39. The respondent also cites the following passage of the judgment of Coffey J. in RB v DPP

[2018] IEHC 326 where, Coffey J. summarised the current law, and concluded that the

actual issue of prejudice was best left to the trial judge, who would be in a position to

hear the relevant evidence:-

“15. It seems to me that the effect of the modern jurisprudence relating to allegations of

undue delay in historic sexual abuse cases is to postpone the issue of prejudice to

the trial itself so that it can be assessed by the trial judge having regard to the

granular detail of the actual evidence that is to go to the jury with the result that

prohibition should only be granted in advance of a trial where the prejudice

complained of is manifest, unavoidable and of such significance as to give rise to a

real or serious risk of an unfair trial.”

40. The respondent submits that the applicant’s contention that he was out of the jurisdiction

at the time of the alleged offences is also a matter to be proven by the applicant at trial,

or that it is possible that the matter could be canvassed at trial by the removal of some of

the charges from the charge sheet.

Exceptional circumstances

41. The respondent submits that none of the factors outlined by the applicant, taken

separately or cumulatively, outweigh the public interest in having these allegations

prosecuted in accordance with law. The respondent submits that poor health and age are

not, in themselves, a form of prejudice, such that there is a real and serious risk of an

unfair trial. The respondent further submits that no medical report has been adduced to

show that the applicant would experience health difficulties attending a trial. To illustrate

this point, the respondent submits a passage from Derek Dunne, Judicial Review of

Criminal Proceedings (Round Hall, 2011) where at para. 8-99, he stated the following:-

“…The courts, regard the age, ill-health, disability or incapacity of an applicant as

matters that are relevant to the issue of whether an applicant is fit to plead and

that the fitness of an applicant to plead is a matter for the court of trial to be

determined in accordance with the procedures contained in the Criminal Law

(Insanity) Act 2006.”

42. The respondent also relies on the case of DT v DPP [2007] IESC 2 where Denham J.

stated that the alleged disability of the applicant was not part of the jurisprudence on

delay and of the right to a fair trial, and was not an issue of prejudice caused by delay.

She further stated that the capacity of the applicant was not an exceptional circumstance,

and that it was a matter for the trial judge to determine a person’s fitness to stand trial.

43. The respondent submits that there is a very high threshold before a trial will be prohibited

on grounds of exceptional or cumulative, circumstances, and that the Supreme Court has

stressed that something truly extraordinary is required to give rise to prohibition being

ordered.

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44. The respondent also cites the case of B’OS v DPP [2017] IEHC 687, where Ní Raifeartaigh

J. rejected the argument that there were exceptional circumstances sufficient to entitle

the applicant to an order of prohibition, and stated that she would be minded to see how

the trial of the case unfolded. The respondent submits that the factors taken into

consideration by Ní Raifeartaigh J. in that case were as here, missing witnesses, and the

age and ill-health of the applicant. Ní Raifeartaigh J. concluded her judgment by stating

the following:-

“29. Finally, while the applicant is now 71 and has had by-pass heart surgery, the

evidence currently before the court is that he has made a good recovery. There is

nothing before the Court to suggest that his ill-health is extreme, or that the stress

and anxiety of the pending trial could be very serious or even fatal, as has been the

medical opinion in other cases. Nor is the applicant at the extreme end of the age

spectrum in terms of such cases.

30. I have therefore concluded that the grounds relied upon, whether considered

separately or cumulatively, do not reach the high threshold for prohibiting a

criminal trial in advance of its commencement. The trial judge will undoubtedly

have careful regard to the considerable lapse of time since the period within which

the offences are alleged to have taken place, a period of between 43 and 50 years

ago, together with the various factors raised in this application. The trial judge will

be in a position to monitor the case as it unfolds, with a keen eye as to the missing

evidence in that context, and the position can be kept under constant assessment

as to whether a point is reached during the trial itself such that it would be unfair to

continue, in which situation, if it arose, the trial judge would have a duty to take

the necessary steps to bring the trial to an end. However, I do not consider that the

trial should be prohibited on an ex ante basis in light of the evidence adduced

before this court.”

Discussion

45. I venture to suggest that no single issue has received more judicial scrutiny in the past

quarter century than that of delay in the prosecution of complaints of child sexual abuse.

As awareness of the extent of the problem of child sexual abuse in Ireland grew, in the

late 1980’s and early 1990’s, so too did the number of prosecutions. Many of the

complaints which came forward, related to events which were alleged to have occurred

perhaps 10, 20 or 30 years earlier. This case, as we have seen, relates to events alleged

to have occurred 54 to 55 years prior to complaint being made. Those early prosecutions

led to a multiplicity of judicial review applications for prohibition, primarily on fair trial

grounds. It was accepted by the courts that the fair trial rights of an accused ranked

higher in the hierarchy of constitutional rights than the right of society to have crime

prosecuted. It was acknowledged that a trial in due course of law includes the

requirement that a trial be conducted with reasonable expedition,

46. Concerns about balancing the fair trial rights of an accused with the societal right to have

serious offences prosecuted, led to a process of complainants being called on to explain

their delay in making complaint, within the context of a judicial review application.

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Complainants and psychologists/psychiatrists gave evidence and were cross-examined on

the reasons for delay in making complaint. In essence a voir dire, on delay which would

normally be an issue to be canvassed within a trial, became a central part of judicial

review applications. This practice continued until the watershed decision of SH v DPP

[2006] 3 IR 575. The test for prohibition was restated by Murray CJ:

47. The issue for the court is whether the delay has resulted in prejudice to an accused

so as to give rise to a real or serious risk of an unfair trial. The court would thus

restate the test as:-

The test is whether there is a real or serious risk that the applicant, by reason of

the delay, would not obtain a fair trial, or that a trial would be unfair as a

consequence of the delay. The test is to be applied in light of the circumstances of

the case.