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Cite as: [2006] IESC 66

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Judgment Title: J.B. -v DPP

Neutral Citation: [2006] IESC 66

Supreme Court Record Number: 36/04

High Court Record Number: 2001 441JR

Date of Delivery: 29 November 2006

Court: Supreme Court

Composition of Court: Denham J., Hardiman J., Macken J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Denham J.	Appeal dismissed - affirm High Court Order	Macken J.


Hardiman J.

Outcome: Dismiss

- 12 -

THE SUPREME COURT

Denham J. 36/04
Hardiman J.
Macken J.

Between:

J.B.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 29th day of November, 2006.
I agree with the order proposed by Mrs. Justice Denham.

The case is one of the earliest to become before this Court after its significant decision in H. v. Director of Public Prosecutions (unreported) Supreme Court, 31st July, 2006). For this reason, though agreeing with the order proposed, I have ventured to prepare this short judgment of my own.

The facts of the case have been amply set out in the judgment of Denham J. and I do not propose to repeat them here. I would however observe that, assuming it is possible to have a trial of the applicant next term, such trial will take place about 36 years after the first, and about 20 years after the last, of the dates when the alleged offences are said to have occurred.

H. v. DPP.
The starting point in any case of this nature henceforth must be the recent judgment of the Supreme Court in H. There are two passages in particular to which I wish to draw attention:

“The Court is satisfied that in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in making a complaint. The issue for a 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 does not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial”.

The second passage is as follows:

“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”.

I wholeheartedly welcome the approach to cases of this type mandated in the judgment of this Court in H. In J.O’C v. DPP [2000] 3 IR 480, I said at p.521:

“I believe that the sole issue in these proceedings is whether there is a real risk that the applicant will not receive a fair trial, that is whether in all the circumstances including, principally, the lapse of time there is a risk that these allegations cannot fairly and safely be prosecuted”.

H. v. DPP in context.
The approach mandated at as a result of the decision in H. must be seen against the background of two earlier and very significant developments in procedural justice. The first relates to delay, and the second to the special position of persons alleging that they were sexually abused as children.

The Courts have always been sensitive to the fact that a long delay in litigating, whether the case is civil or criminal, can gravely interfere with the prospects of being able to do justice in the particular case. Examples of this concern could be cited from a very remote period but, perhaps due to an increase in the volume of litigation and of litigants consciousness of the potential for legal action, this problem seems to have become acute in Ireland from the 1970s onwards. In my judgment in JO’C v. DPP [2000] 3 IR 480 I surveyed a considerable number of cases from that period. Having referred to this survey, it is unnecessary to repeat it here. I would instance, by way of example, O’Keeffe v. Commissioners of Public Works (unreported, Supreme Court, 24th March, 1980) where an attempt to litigate an industrial accident case after 23 years was described as giving rise to “a parody of justice”. On the criminal side, a delay of four years in the prosecution of an assault case was described in this Court in O’Connell v. Fawcett [1986] IR as “extreme”. The disadvantages to defendants, civil or criminal, were fully acknowledged in this substantial line of jurisprudence and our courts endorsed an insight of Lord Diplock “The chances of the Court being able to find out what really happened are progressively reduced as time goes on.”

The second new departure dates at least from the judgment of Finlay C.J. in G. v. DPP [1994] 1 IR 347. This is based on a realisation that cases involving the alleged sexual abuse of young children may be long delayed by reason of inhibitions which may sometimes affect the making of a complaint, perhaps preventing it for a period of many years. The working out of the consequences, procedural and otherwise, of this insight and been the subject of a great deal of recent jurisprudence and that process of working out is not, in my view, yet complete. Its first stage was the bringing of prosecutions after periods of time which would have precluded prosecution had the complaint been of any other nature. This, in turn, led defendants to protest, sometimes with obvious truth, that they were hugely and unfairly disadvantaged in meeting such prosecutions. The proper approach for the Courts to take in dealing with such applications was first laid down in the very comprehensive judgments in P.C. v. DPP [1999] 2 IR 25. This approach has now been replaced by that mandated by the recent H. decision which lays down the test encapsulated in the citations already given.

I propose, first, to apply that test to the facts of the present case.

Applying the H. test.
The state of the evidence in this case appears to me to illustrate a common failing in applications of this sort. There has been an omission fully to engage with the facts and to put the case, in evidence, as far as it would have to be put to secure relief. I agree with the finding of Mrs. Justice Denham that this prosecution after so long a delay has caused a great deal of unnecessary stress and anxiety to the defendant. It appeared to be un-contradicted that he suffered an acute stress reaction after being interrogated (perhaps inconsiderately) by the gardaí, leading to his admission to hospital for a period of ten days. I am, however, bound to agree with Mrs. Justice Denham that this feature was simply not put far enough on the applicant’s evidence to justify granting him relief. There was talk during the District Court proceedings, and in the affidavits in these proceedings, of comprehensive medical reports from named specialist doctors, but they were simply not put before the Court.

I am far from belittling the stressing effect on a man of seventy, previously of good character, of the sudden production against him of allegations relating to a period up to half a lifetime ago. I am equally aware of the exacerbating effect, in terms of stress and anxiety, of the gradual realisation that, by reason of the lapse of time, there is little enough one can do to rebut these allegations except to deny them. The experience of anyone who has defended or prosecuted such cases leads to the conclusion that there is a practical necessity for the defendant to do more than that, positively to undermine the complainant’s account, but this will often be impossible or barely possible. The defendant’s position is a perilous one, even if he is entirely innocent.
However, as Mrs. Justice Denham observes, there is an element of stress and anxiety inherent in any criminal charge and its mere existence cannot be a ground for preventing a trial. There is an absence in this case, as in many other such cases, of evidence, carrying an allegation of unnecessary stress and anxiety beyond the level of generality and beyond the time of the 1996 hospitalisation. Just how stressful is a criminal trial, compared with other well known stressors? What, if any, is the exacerbating effect of a defendant’s age and state of general health, or of the particular difficulties which beset the defence of an old allegation? In what circumstances, if any, can the stress and anxiety prejudice the defence by undermining the capacity, or the affect, of the defendant? These are all factors wholly unexplored in general or on the particular facts of this case. It is by reason of this lack of specificity, lack of engagement to the actual facts, that I would refuse relief.

I do not consider that the arguments advanced on behalf of the defendant and based on the jurisprudence of the European Court of Human Rights, has any relevance in the circumstances of this case. I wish, therefore, to reserve my opinion on the effect of that jurisprudence in a case of this sort until a case arises where this material is of direct relevance.

Difficulties of old cases.
I wish to add certain observations which are naturally, in the context of this case, obiter. I believe it is appropriate to state (and in some instances to restate) certain matters now, at the beginning of the new dispensation in dealing with old cases. It is perhaps easier to do so in this case where it is appropriate to refuse to restrain the trial of the offence.

Firstly, I entirely agree with what is stated by Mrs. Justice Denham in her judgment in this case:

“Of course the issue of delay will be a matter of importance for the trial judge. The fact that an application for a prohibition has not succeeded does not dispense a judge from his constitutional duty to ensure due process in the trial. By its very nature the delay in this case will be a matter for a trial judge to consider and address from several aspects.

As I stated in DPP v. O’C. [2006] IESC 54:

‘… whether an application for judicial review is made or not, the trial court retains at all time its inherent and constitutional duty to ensure that there is due process and a fair trial. 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 of preventing the trial from proceeding. This jurisdiction is exercised in the course of a trial but does not enable, or relate to, a preliminary hearing at the commencement of a trial on the issue of delay.’ ”

The jurisdiction of the trial judge will, of course, be exercised on the case as it develops before him. It may take the form of preventing the trial from proceeding, or of appropriate warnings or cautions to the jury about the case as a whole or about special aspects of it. It appears to me that this jurisdiction must be exercised in the light of a realisation that a trial of a very old case has inherently dangerous aspects to it: memories fade, witnesses or potential witnesses die or become unavailable, the allegations in themselves tend to lack specificity and the capacity to contradict a complainant on specific details may have been wholly lost due to these things, either one of them alone or in combination. It must also be borne in mind, as illustrated in cases such as
DPP v. F. (unreported, Court of Criminal Appeal, 2nd December, 1996) and DPP v. B.J. [2003] 4 IR 525, and DPP v. N.W. (unreported, Court of Criminal Appeal, 16th December, 2005) that immensely damaging failures of memory may take place, even in trained and professional people, in periods of time which are, compared to some of the delays the Courts have become used to, very short.

In this connection I wish to repeat what I said in J.O’C, at p.504:

“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 objectively provable facts relevant to the allegation, or that the complainant has made other allegations against other people which are lacking in credibility”.

There are certain issues of principle which, it seems to me, the Courts will have to address sooner rather than later. We have gone down the road of permitting cases of this nature to be brought after a period of time which would be fatal to any other case. It is easy to say to a jury that a long delay may prejudice a defendant in any of the ways set out above, and in other ways. But what, precisely, is a jury to make of this? A very old criminal case, like any criminal case, requires to be proved to the criminal standard, and there is no question of a more exacting standard simply because it is very old. It will be true in almost every case, or at least reasonably possible, that a defendant would be in a better position to mount a defence if the case had been brought much earlier. Permitting the case to be brought after very long periods carries with an acceptance that there will be additional risks or difficulties in the defence of the case. The Courts are bound, as far as possible, to minimise those risks but there is to date little authority as to how this is to be done. Should there be a special warning? Should there be a corroboration warning in all old cases? If so, of what should it consist? Suppose it emerges at trial (not having been previously evident, in which case prohibition would presumably have been granted) that a defendant is specifically disadvantaged in some way, what is the appropriate response to that?

There are a number of cases, of which the most recent is DPP v. E.C. (unreported, Court of Criminal Appeal, May 29, 2006) which support the proposition that in sexual abuse cases, where there has been a lengthy delay, a warning to the jury of the dangers thereby arising should be given by the trial judge in the course of his summing up. The form of warning given by Judge Haugh (as he then was) in DPP v. R.B. (cited in judgment of the Court of Criminal Appeal, 12th February, 2003) was again approved in that case, but this form of warning seems to me to stop short at pointing out the dangers, but refrains from telling the jury how they should act on them.

It is in my view essential that this specific question be addressed: how, precisely, should a jury approach a case in which there is a real chance that the defendant would have been in a better position to meet the allegation had it been made shortly after the offence was alleged to have taken place?

The best known of the warnings which a judge must give to a jury is that relating to visual identification, set out in People v. Casey (No. 2) [1963] IR 33. The terms of this warning are too well known to set out here. Having been in many cases where a Casey warning was given, I have no doubt that its force principally derives from the statement of the Courts’ experience of actual cases: “… in a number of instances such identification has proved erroneous”; “experience has shown that mistakes can occur where two or more witnesses have made positive identifications”; “… there have been a number of instances where responsible witnesses, whose honesty was not in question and its opportunities for observation had been adequate, made positive identification on a parade or otherwise, which identifications were subsequently proved to be erroneous…”.

There have been a number of cases, in the area of the law now under discussion, where very alarming effects even of relatively short periods of delay have come to the attention of the Courts. I have in mind cases such as DPP v. F. (unreported, Court of Criminal Appeal, 2nd December, 1996); B.J. v. DPP [2003] 4 IR 525 and DPP v. N.W. (Court of Criminal Appeal, unreported, 16th December, 2005). I have discussed these cases in detail in previous judgments. In my view consideration will have to be given, in an appropriate case, to whether these and other profoundly disturbing cases should form the basis of a specific warning, perhaps along Casey lines, to be given in cases of this sort.
Investigative and procedural aspects.

The task of ensuring the fair trial of old allegations is not exclusively one for the Courts. A heavy responsibility seems to me to devolve on the prosecuting authorities. It appears to me essential that a full record be made, by video taping or otherwise, of the allegation as originally made by the complainant and of any altered, additional, or supplementary allegation. This is so that one can see whether the allegation has been consistent throughout in content and context. Moreover it seems to me essential that a full investigation be made of the circumstances of the allegation with a view to isolating “islands of fact” as that phrase has been used in earlier cases. If it has not proved possible to isolate such factual aspects, that should be clearly stated.

It also occurs to me that a defendant may be needlessly prejudiced by the absence of any provision, in criminal cases, for discovery or something closely analogous to it. Nor is there in this jurisdiction a firm protocol for disclosure. This, in my opinion, us a considerable anomaly. It may be noted that in Minister for Justice v. Stapleton (High Court, unreported, 23rd November, 2005), discovery was held to be available (though not ordered on the facts of that case) to a person sought by another country on foot of a European Arrest Warrant. The Court (Peart J.) in that case cited recital 13 of the Framework Decision relating to the new surrender arrangements, recital 13:

“This Framework Decision does not prevent a member State for applying its constitutional rules relating to due process…”.

The Court went on to hold that the reference to due process enabled a respondent to pursue an application for discovery.

Conclusion.
The prospect of the trial of very old cases, to my mind, presents the Courts with an acute dilemma. On the one hand, it has been decided that (except perhaps in an extreme case) mere delay in making a complaint will not in and of itself be a ground to prohibit a trial. On the other hand it is long established that, in the words of Denham J. in B. v. DPP [1997] 3 IR 140:

“The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If there is a real risk that the applicant would not receive a fair trial then, on the balance of these constitutional rights, the applicant’s right would prevail…”.

A similar conclusion had been reached by Finlay C.J. in The State (O’Connell) v. Fawsitt, cited above:

“A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before a jury”.

One must also, particularly since the incorporation of the European Convention of Human Rights and Fundamental Freedoms into our law, bear in mind the provisions of Article 6(1) of that instrument:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing

within a reasonable time

by an independent and impartial tribunal established by law…”.

The challenge for the Courts is to implement these rights of an accused person without nullifying or rendering meaningless the proposition that, in general, delay in making a complaint of this sort will not in and of itself preclude the initiation of a prosecution. It seems to me that in some cases it may not be possible to preserve both rights, and in that event the fair trial rights must prevail. But the truth or otherwise of this impression can only be worked out over time and in individual cases.

J.B. and DPP
Judgment delivered the 29th day of November, 2006, by Denham J.

1. At issue in this case is whether the criminal trial of the applicant should be prohibited. J.B., the applicant/appellant, hereinafter referred to as 'the applicant', who described himself as a retired policeman, farmer and businessman, has sought an order in the High Court prohibiting proceedings pending against him in the Circuit Criminal Court. The applicant has been returned for trial on 14 charges of indecent assault on five nieces on dates between March 1971 and March 1987. He has sought a declaration that by reason of the lapse of time in the institution and prosecution of the criminal proceedings he has been deprived of his right to a trial with due expedition, and that he would suffer serious and irreversible prejudice in the defence of the proceedings, in consequence of which he has been denied his right to a fair trial. The Director of Public Prosecutions is, and is referred to as, 'the respondent'.
2. The grounds upon which the applicant sought leave for judicial review were as follows:

i On the 20th June, 2000, the applicant was returned for trial to the Clonmel Circuit Court on fourteen counts of indecent assault in respect of five of his nieces, on various dates between the 29th March, 1971 and the 9th March, 1987.

ii The applicant has been deprived of his right to a trial in respect of the said alleged offences with due expedition because of the lapse of time between the alleged commission of the offences and the trial.

iii The lapse of time since the alleged commission of the offences is such as to give to an unavoidable and incurable presumption of prejudice against the applicant.

iv The State, and in particular, the Garda and prosecuting authorities, has been guilty of inordinate and inexcusable delay in the prosecution of the alleged offences. The first statement of complaint giving rise to the proceedings was made by T.M. on the 7th day of September, 1996, whereas the applicant was not returned for trial until the 20th day of June, 2000.

3. On the 14th November, 2003, the High Court ordered that the respondent be restrained from further prosecuting the applicant in the proceedings relating to the charges pertaining to M.K., and the application in relation to the balance of the motion was refused. It was ordered that the applicant pay the respondent half of the costs of the proceedings when taxed and ascertained.
Ó Caoimh J. dealt in detail with the reasons for the delay and the psychologist's reports. The learned trial judge considered the facts in relation to each of the complainants and the reasons for their delay in making a complaint. He found that in each case, except M.K., that there was an appropriate reason for their delay.
The learned trial judge then considered the issue of whether there was a real or serious risk of an unfair trial and found that such a risk did not exist.
4. The applicant has appealed against the said judgment and filed fourteen grounds of appeal, as follows: that the learned High Court judge erred in:-

(i) holding that the applicant had not been deprived of his right to a trial with due expedition by reason of the lapse of time in the institution and prosecution of the said criminal proceedings;

(ii) holding that the applicant had not suffered and would not suffer serious and irreversible prejudice in the defence of the said proceedings by reason of the said lapse of time;

(iii) failing to hold that the applicant had been denied his right to a fair trial in respect of the said charges;

(iv) holding that the applicant had not been able to point to any clear case of prejudice in the context of defending himself at any trial for the charges preferred against him;

(v) finding that the complainants in respect of the said charges and each of them had suffered any psychological disorder on the evidence adduced capable of explaining the inordinate delay in making their complaints;

(vi) finding that factors of low self esteem in any or all of the said complaints was an inhibitory factor preventing any or all of the said complainants from coming forward with a complaint;

(vii) finding that there was any psychological basis sufficient on an objective basis to explain or justify the delay in making the said complaints;

(viii) in respect of the complainant E.K., coming to the conclusion that the delay on her part in reporting the alleged offences was reasonable and understandable, notwithstanding the absence of any evidence by way of psychological opinion or conclusion that the alleged offences had had either a significant psychological impact on the said complainant or had contributed to the delay in reporting the alleged offences;

(ix) failing to engage in any or any proper or critical evaluation of the evidence in the action, including the Affidavits sworn and filed in Court and the oral evidence of Mr. Paul Gilligan, Clinical Psychologist;

(x) failing to find that the psychological evaluation of Mr. Gilligan in respect of complainants and each of them was inadequate, cursory and did not address the appropriate criteria relevant to the issues before the Court;

(xi) failing to find that the real reason for the said complainants delay in making their complaints was not due to any psychological factors attributable to the alleged conduct of the applicant but was due to a variety of other factors as set out in the report of Mr. Gilligan including but not limited to circumstances within the complainants own family;

(xii) failing to take into account all of the circumstances relating to the making of the said complaints including the particular circumstances of the complainants own family and the prior unsubstantiated allegation against the application by another member of that family;

(xiii) failing to take into account the effects of the delay in reporting and subsequent prosecution upon the health (both psychological and physical) of the applicant;

(xiv) such further or other grounds as may be advanced at the hearing of the appeal.

5. The respondent brought a cross appeal in relation to the order prohibiting the proceedings in respect of M.K.
6. This case commenced before this Court (Denham J., Hardiman J., McCracken J.) on 26th January, 2006, but legal argument was not concluded on that day. The matter was adjourned to be resumed on another day. However, the jurisprudence on delay in cases where sexual abuse of children is alleged was under review by this Court in another case and this case (as were others) was adjourned pending the outcome of that review.
7. In H. v. Director of Public Prosecutions (Unreported, Supreme Court, 31st July, 2006) this Court considered the jurisprudence which has developed over the last decade in cases where there has been an accusation of child sexual abuse and a significant delay between the alleged abuse, the complaint and the preferment of charges against the accused. The Court held that in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in making a complaint. It was stated that 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 did not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial. The test to be applied was stated to be:

"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."

8. This case was relisted before the Court on 12th October, 2006. Written submissions were received and oral submissions made on behalf of the applicant and the respondent.
Mr. Michael Counihan, S.C., counsel for the applicant, submitted that this was an exceptional case to which H. v. Director of Public Prosecutions (Unreported, Supreme Court, 31st July, 2006) does not apply. The principle grounds of appeal identified were:

(a) The finding by the trial judge that in respect of four out of the five complainants there was an adequate explanation of the delay in coming forward which was referable to the conduct of the applicant;

(b) The finding by the trial judge that the applicant has not suffered and/or would not suffer serious and irreversible prejudice in the defence of the proceedings by reason of delay;

(c) The finding by the trial judge (by inference only since it was alleged that there was no consideration of the issue by the learned trial judge) that there was no unnecessary or unjustifiable delay on the part of the prosecuting authorities in pursuing the complaints to the eventual charging of the applicant.

Explanation

The judgment of the High court was concerned mostly with the psychological reasons for the delay by the complainants in making a complaint, the explanation. However, as a consequence of the development in the law in H. v. D.P.P. this, in general, is no longer an issue in such cases. Despite the submissions raised on behalf of the applicant, I am satisfied that this is not a good ground of appeal. Counsel submitted that this case was distinguishable from H. v. Director of Public Prosecution in light of (i) the absence of psychological evidence; (ii) it was submitted that, the complaints were organised in support of the first complainant; and (iii) the lack of specificity of complaints initially, which, it was submitted, gave rise to complicity of the complainants.
The earlier jurisprudence which required evidence from psychologists and others explaining why a child did not make a complaint of sexual abuse for many years after the event has resulted in judicial knowledge of the phenomena. Consequently, a psychological analysis of complainants and the reason why they did not make a complaint as children is no longer required. As was stated by the Court in H. v. The Director of Public Prosecutions:

"The Court is satisfied that in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in making a complaint. The issue for a 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 does not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial."

The applicant contended that notwithstanding the decision in H. v. D.P.P a consideration of the reasons for the delay in making the complaints in this case is relevant and necessary to the decision. I am satisfied that such contention must fail. While H. v. D.P.P. does not preclude consideration of the reasons for the delay, this case does not exhibit exceptional factors requiring such an analysis. There was a very lengthy delay in this case. Unfortunately, as we have experienced in the courts over the last decade, it is not an unusual length of time in this type of case. Inherent in many such cases has been a delay for reasons which no longer come before the court: H. v. D.P.P.
There is no good reason to distinguish H. v. D.P.P. and to consider the psychological and other evidence in this case. Other aspects of this submission related to matters which may arise at the trial. Therefore, the primary concern for the Court must be whether by reason of the delay there is a real or serious risk of an unfair trial. I am satisfied that the applicant has failed to establish such risk.
This decision does not exclude issues relating to the delay at the trial. The issue of delay will be a matter of importance for the trial judge of course. The fact that an application for a prohibition has not succeeded does not dispense a judge from his constitutional duty to ensure due process in the trial. By its very nature the delay in this case will be a matter for a trial judge to consider and address from several aspects. As I stated in D.P.P. v. O'C [2006] IESC 54:

". . . whether an application for judicial review is made or not, the trial court retains at all times its inherent and constitutional duty to ensure that there is due process and a fair trial. 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 of preventing the trial from proceeding. This jurisdiction is exercised in the course of a trial but does not enable, or relate to, a preliminary hearing at the commencement of a trial on the issue of delay."

Prejudice
As to the matters raised in paragraph (b) above, on behalf of the applicant it was submitted that there was presumptive prejudice. It was submitted that the delay was inordinate, and counsel relied on the issue of stress and anxiety suffered by the applicant and on P.M. v. Malone [2002] 2 IR 560. In that case Keane C.J., with whom McGuinness J. and Hardiman J. agreed, held that where inordinate delay did not jeopardise the accused's right to a fair trial but had caused unnecessary stress and anxiety, the court had to engage in a balancing process between the accused's right to be protected from such stress and anxiety and the public's interest in the prosecution and conviction of those guilty of criminal offences.
In this case there has been inordinate delay but no evidence that it has jeopardised the applicant's right to a fair trial. So the next step is to engage in the balancing process described by Keane C.J. in P.M. v. Malone. As it appears to me that this is the strongest ground advanced on behalf of the applicant, I have considered it in detail and I set out the relevant sections of the affidavits filed.
The evidence before the High Court on this issue was referred to this Court and I have considered it carefully. It is clear that the applicant suffered from a stress reaction after he was questioned by An Garda Siochána in October, 1996. He was admitted to hospital for ten days in relation to symptoms which were considered to be stress related. The evidence was given in paragraph 9 of the affidavit of Michael O'Connor, sworn on the 28th June, 2001, where he deposed:

"Furthermore, the institution of these proceedings has had a severe and adverse impact on the applicant's mental health. Following his detention at . . . garda station in October of 1996, he was admitted to . . . Hospital with chest pain and was kept in intensive care for a period of approximately 10 days. No physical cause for this pain was found and it was considered to be stress related. During this period of time he was treated for shock and placed on anti-depressant medication. Following his discharge from . . . Hospital, the applicant never returned to work and the auctioneering business, which he had recently established, closed in November, 1996. The applicant has not worked since that date. He has become depressed and speaks openly about suicide in the context of facing the charges, which have been made herein. As a consequence of the lapse of time deposed to above, the applicant is now significantly less well equipped to deal with a trial on these charges than he would otherwise have been."

In his affidavit sworn on the 19th October, 2001 Paul Fitzpatrick deposed:

3. On September 7th 1999, the applicant did not appear at . . . District Court. He was represented by Michael O'Connor, Solicitor, of James Reilly & Sons, Solicitors. Mr. O'Connor stated that his client was unable to attend because he was mentally unstable and had developed a phobia of crowded places. He handed a report from a Dr. M.A. Lonergan into Court. Mr. O'Connor sought a lengthy adjournment of the charges before the District Court. The Court directed that appropriate psychiatric treatment and assessment be carried out on the applicant. On foot of his application, the matter was adjourned to December 7th 1999, with time extended for the service of a Book of Evidence.

By letter dated December 1st 1999, the applicant's solicitors wrote to Mr. Brian Maguire, my predecessor as State Solicitor for Co. . . ., seeking to have the matter adjourned for a lengthy period by reason of the state of the applicant's health and enclosing a letter from a Dr. Lonergan dated November 30th 1999. On the following day, Mr. Maguire addressed a response to Mr. Reilly whereby he informed him that the adequacy of the explanation for the applicant's absence would be contested when the matter came before the District Court on December 7th 1999. I beg to refer to a copy of this correspondence, upon which, pinned together and marked with the letter 'A' I have endorsed my name prior to the swearing hereof.

I say and believe that, on December 7th 1999, Ms. Ursula Flynn, Solicitor, appeared before . . . District Court. She handed in a further medical certificate from Dr. Lonergan and sought a further lengthy adjournment of the matter. Inspector P.D. Feeney appeared for the respondent. He opposed her application for a lengthy adjournment and questioned the nature and extent of the medical certificate that had been furnished to the Court. Judge Riordan adjourned the matter until after lunch in order to allow Dr. Lonergan to give oral evidence of the applicant's medical state.

7. Since there was no sitting of the District Court on the adjourned date, the matter next came before that Court on January 10th 2000. On that date, Mr. Michael O'Connor, Solicitor, sought to have the matter adjourned for up to four months. He advised the court that he had received a report from a Dr. Neville. This indicated that the applicant might be suffering from memory loss and recommended that he be assessed by a clinical psychologist and undergo a C.T. scan. Mr. O'Connor also informed the Court that his client was contemplating taking High Court proceedings to challenge the delay in the commencement of the prosecution. Judge Riordan remanded the applicant on continuing bail to . . . District Court on April 18th 2000 and extended the time for filing a Book of Evidence to that date.

8. On April 18th 2000 the applicant was served with a Book of Evidence. Ms. Maura Hennessy, Solicitor, sought to have the matter adjourned for two months in order to obtain reports concerning the applicant's health. Judge Riordan adjourned the matter peremptorily to . . . District Court on June 20th 2000. The applicant submitted that he had no case to answer on four of the charges. Having heard submissions, Judge Riordan sent the applicant forward for trial on charges 1 to 8,10 and 12 to 16 in the Statement of Charges. Bail was fixed on condition that the applicant did not interfere with witnesses. Mr. Michael O'Connor, Solicitor, who appeared on the applicant's behalf, informed the court that his client intended to commence High Court proceedings with a view to staying his trial.

11. By letter dated January 10th 2001, the applicant's solicitors again raised the issue of the applicant's competence to stand trial and stated that they would seek an adjournment of the matter on January 30th 2001. On the following day I responded to this letter, stating that this application would be opposed. I pointed out that the applicant's trial had been specially fixed for hearing on January 30th 2001, that the application for the adjournment was being made late in the day and that no medical reports had been submitted in support of this application. On January 25th 2001 a further letter arrived from the applicant's solicitors, to which I responded in writing the following day. I beg to refer to a copy of this correspondence upon which, pinned together and marked with the letter "B", I have endorsed my name prior to the searing hereof.

12. On January 30th 2001 all prosecution witnesses attended at . . . Courthouse for the applicant's trial. His Honour Judge Haugh acceded to the applicant's application for a further adjournment of the matter to enable further psychiatric examinations of the applicant to be conducted."

May Delmar deposed on behalf of the respondent in an affidavit of 26th October, 2001 in paragraph 12:

12. On November 13th 1996 the applicant's solicitor contacted An Garda Siochána stating that on the previous day his client had been removed to hospital and was in intensive care. He claimed that his client had not recovered from his arrest. This claim was not corroborated by any medical reports.

In his affidavit of 13th December, 2001 Michael O'Connor deposed:

3. I say that I first met and took initial instructions from the applicant on the 31st August, 1999. I say that on the 6th September 1999 I received a faxed letter from the applicant's family doctor, Dr. M.A. Lonergan, stating that the applicant was mentally unstable and not fit to attend Court. On the same date I faxed a letter to the superintendent, Garda Siochána, . . . Town explaining the position to him. On the 7th September 1999 at . . . District court, Ms. Ursula Flynn, Solicitor, . . . Town, appeared on my behalf and in the circumstances the matter was adjourned to the 7th December 1999. The court directed that appropriate Psychiatric treatment and assessment be carried out on the applicant. I say that the Book of Evidence was not ready for service on the applicant on the 7th September 2001.

4. I say and believe that on December 7th 1999 Ms. Ursula Flynn, Solicitor again appeared before . . . District Court on my behalf. A further letter from Dr. M.A. Lonergan dated 30th November 1999 was furnished to the court explaining that the applicant was suffering from depression and during stress developed an uncomfortable feeling in his chest. Dr. Lonergan felt that the applicant was not able to attend court on the 7th December. It was explained to the court that arrangements had b[een] made to have the applicant seen by Dr. Tess Neville, Consultant Psychiatrist and that further enquiries were recommended including having the applicant seen by a Clinical Psychologist and a C.T. brain scan carried out. The matter was adjourned to . . . District Court on the 17th December, 1999 for service of the Book of Evidence. Again the Book of Evidence was not available for service at . . . District Court on the 7th December 1999.

5. I say that at . . . District Court on the 17th December 1999 no judge was available and all cases were adjourned automatically to . . . District Court on the 10th January 2000. I say that I was in attendance at . . . District Court on the 17th December 1999 as was the applicant in person.

6. I say that at . . . District Court on the 10th January 2000 I again appeared on behalf of the applicant who was again present in court. I say that again the Book of Evidence was not available for service on the applicant. I informed the court that further investigations had to be carried out and that arrangements for a C.T. brain scan has been arranged for the 17th January 2000. The applicant was remanded on continuing bail to . . . District Court on the 18th April, 2000 and time was extended for service of the Book of Evidence to that date.

7. On the 18th April 2000 the applicant was present in court and was served with the Book of Evidence. The matter was adjourned to the 20th June 2000 to allow the defence time to consider the Book of evidence, take further instructions and prepare detailed submissions. I say that on the 20th June 2000 I made a number of submissions on behalf of the applicant. Having heard the detailed submissions Judge Riordan refused the information in relation to counts 9 and 11 in the Book of Evidence. The applicant was returned for trial on the remaining counts to the next sittings of . . . Criminal Court on the 5th December 2000.

. . .

13. I say that following a consultation with the applicant and counsel arrangements were made to have [the applicant] seen by Professor Patricia Casey of the Department of Psychiatry, 63, Eccles Street, Dublin 7 on the 8th January 2001. I say and believe that this was necessary having regard to the genuine concern which counsel and I had about the applicants ability to properly instruct his legal advisers and cope with a trial. In Professor Casey's preliminary opinion dated 19th January 2001 it was felt that a further assessment was required on Mr. B. I say that on the 10th January 2001 I wrote to the State Solicitor of South . . . advising him of the position."

In a supplemental affidavit of 29th November, 2002 Michael O'Connor stated, inter alia:

"3. I beg to refer to paragraphs 13 and 14 of said affidavit when produced. As appears therefrom on the 30th January 2001 his Honour Judge Haugh acceded to the applicant's application for a further adjournment of the matter to enable further psychiatric examinations of the applicant to be conducted. I say that arrangements were made to have the applicant admitted to the Mater Hospital in order that Professor Casey could further evaluate him. Professor Casey however, did not return to full time work until the 1st March 2001. I say that a bed became available for the applicant on the 22nd day of March 2001 and the applicant availed of same. I beg to refer to copy letters dated 9th February and 10th March 2001 received from Professor Patricia Casey which I have pinned together and upon which marked with the letter "A" I have signed my name prior to the swearing hereof.

These letters relate to arrangements to admit the applicant to hospital.

4. I say that on the 17th day of April 2001 I received a letter from Professor Casey confirming that her Psychiatric Report was available on receipt of her fees. I also received a similar fee note from Dr. Odhran McCarthy, Senior Clinical Psychologist. I say that on the 19th day of April 2001 payment was forwarded to Professor Patricia Casey in respect of both reports.

5. I say that Professor Casey's report was received on the 2nd day of May 2001. On that date copies of both reports were forwarded to counsel. On the 27th June 2001 draft pleadings grounding an application for leave to bring judicial review were received from counsel and on the 29th day of June 2001 leave was granted to commence judicial review proceedings by way of order of this Honourable Court."

The said reports were not before the Court.
Thus there were a number of areas canvassed on behalf of the applicant in relation to the issue of stress and anxiety.
First, and most important, was his reaction to the interview in 1996. Without passing any judgment on the conduct of the interviewing member of the garda síochána at the initial interview referred to, it is clear that the applicant had a stress reaction to that interview. However, a single stress reaction to an interview (in 1996) is not the type of stress and anxiety envisaged in P.M. v. Malone and consequently the applicant would not be entitled to an order prohibiting his trial on this basis.
Secondly, following his charge in June of 1999 the applicant obtained a number of adjournments in the District Court owing to health concerns. In the initial affidavit by Michael O'Connor deposed to on 13th December, 2001, in paragraph 13, following a consultation with the applicant and counsel, arrangements were made to have the applicant seen by Professor Patricia Casey. Following Professor Casey's preliminary opinion drafted on 19th January, 2001, it was felt that a further assessment was required on the applicant and the State solicitor was informed. Thus while there are references to adjournments for the purpose of medical reasons, the medical evidence presented to the Court is scant and does not bring it within that envisaged to prohibit a trial. It is axiomatic that there will be a level of stress and anxiety on learning of a pending prosecution for sexual abuse of children. However, this is not the test set out in P.M. v. Malone.
Thirdly, there was reference to medical reports being sought as to his capacity to instruct counsel. That is an entirely different issue to the stress test as expounded in P.M. v. Malone. It is not an issue before this Court. The capacity of the applicant to plead is a matter which may more appropriately be raised before the trial judge.
In all the circumstances of this case, I am not satisfied that it has been established that the applicant's trial may be prohibited on this ground.
Prosecutorial delay
The applicant also submitted that there had been very significant and unexplained delay on the part of the prosecuting authorities at the investigation and prosecution stages. Counsel prepared a diary of events, as follows: 07.09.1996, complaint by T.M. of sexual assault in 1975/76; 26.10.1996, applicant arrested and questioned; complaint of stress, applicant 10 days in hospital; Sept/Oct. 1996, B.B. complaint re offences in 1972 - 1980; 12.06.1997, M.B. complaint in Australia re offences in 1974 - 1979; 23.10.1998, E.K. complaint re one allegation in 1973/74. Applicant further questioned at home by Gardaí; 13.11.1998, M.K. complaint, one incident in 1973; Feb. 1990, D.P.P. directs charges against applicant concerning 3 complaints subject to further evidence; 15.06.1999, applicant arrested and charged with 16 offence; 18.04.2000, Book of Evidence served on applicant; 20.06.2000, submissions on Book of Evidence in District Court, Return for Trial, (14 Counts out of 16); 05.12.2000, trial listed and adjourned to end Jan. 2001 by consent - indictment served; 21.12.2000, disclosure completed by respondent; 30.01.2001, case listed for trial. Adjourned by Haugh J., for applicant to have psychiatric examination to 24 July 2001; 22.03.2001, examination of applicant by Prof. Casey in Mater Private Hospital: In-patient; 02.05.2001, report from Prof. Casey available to applicant on issue of fitness to plead; 29.06.2001, leave granted for Judicial Review by Ó Caoimh J.; Oct. 2001 - Apr. 2002, exchange of Affidavits and service of Notices to Cross Examine; 03.12.2002, High Court proceedings heard (over three days); 14.11.2003, Ó Caoimh J., judgment in draft delivered; 18.01.2004, approved judgment issued; 04.02.2004, Notice of Appeal served; 24.05.2004, Notice of Cross Appeal served by respondent; 26.01.2006 Supreme Court appeal commenced but legal submissions on behalf of the parties were not completed on that day and the case was adjourned, ultimately pending the determination of H. v. The Director of Public Prosecutions.
There is no doubt that there has been inordinate delay in this case. However, that of itself is not a reason to prohibit a trial. The appropriate test was stated by Kearns J. in P.M. v. The Director of Public Prosecutions [2006] IESC 22 at p. 18 where he stated:

"In conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been established by the applicant, then that is not sufficient

per se

to prohibit the trial, but that one or more of the interests protected by the right to an expeditious trial must also be shown to have been so interfered with such as would entitle the applicant to relief."

Applying that test to the facts of this case I find as follows. While the delay has been inordinate the applicant has not established blameworthy prosecutorial delay. That is sufficient to dispose of this aspect of the appeal. However, the applicant raised the issue of the applicant's stress and anxiety. While the applicant did suffer a stress related response to the initial garda interview a single episode is not such as to require the balance to be struck so as to prohibit a trial.
There is no doubt but that there has been inordinate delay. However, that of itself is not sufficient to invoke the remedy of prohibition. In our legal system where the Director of Public Prosecutions has determined that a prosecution should be brought, on behalf of the People, where the People have an interest in an accused person being brought to trial, and where victims have rights, the usual process is for a trial to proceed, however the courts will intervene to prohibit a trial for the purpose of protecting constitutional rights, due process and fair procedures.
There may be other remedies. In T.H. v. D.P.P. [2006] IESC 48 Fennelly J. referred to the decision of the Court of Human Rights in Barry v. Ireland ECHR 865. In that case the court made an award in the sum of €8,000 in respect of non pecuniary damage. That court stated, at paragraph 61:

"The Court considers that the applicants must have suffered some distress and frustration resulting from the delays attributable to the authorities in the proceedings, which cannot sufficiently be compensated by the finding of a violation…). The Court has had regard to all the circumstances of the case and, in particular, to those factors which must have exacerbated the impact on the applicant of the breaches of the Convention (including his advanced age associated physical limitations together with the serious nature of the outstanding charges). Ruling on an equitable basis, the Court awards award him EUR 8,000 in respect of non-pecuniary damage."

Of this judgment Fennelly J. stated:

"It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were '

partially or completely responsible'

for certain periods of delay had the automatic consequence that a prosecution had to be halted. Such a conclusion would, in any legal system, call for some consideration of the public interest in the prosecution of crime. We know, of course, from other parts of the case-law of the Court that it does recognise the public interest in prosecuting crime (see

Kostovski v Netherlands

[1989] 12 EHRR;

Doorsen v. Netherlands

22 EHRR 330). Thus, the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.

In brief, the decision in

Barry v Ireland

adds nothing to the applicant's claim to have his trial stopped. The applicant has not, at any stage, advanced a claim for damages as part of the relief sought in these proceedings. As in almost all such cases, the principal objective has been to seek to prevent his trial from proceeding."

I apply that approach also. The issue for this Court is whether an order prohibiting the trial should be made. For the reasons given, applying the appropriate case law, I am satisfied that the applicant has not shown that by reason of the delay that there is a real or serious risk of an unfair trial or that he has suffered stress or anxiety so as require prohibition of his trial.
As to the cross appeal in respect of the effective extension of time allowed by the High Court judge insofar as the relief concerned the complainant M.K. was granted, in view of all the circumstances I am satisfied the cross appeal should be dismissed. In the context of the case it would not be proportionate to refuse the extension. Thus the applicant is and was entitled to the extension of time.
Conclusion
The applicant has sought to prohibit a trial in which he is the defendant. The State having initiated the prosecution through the designated bodies the courts will intervene to protect constitutional rights, fair procedures and due process. While under our system of law it is for a jury of twelve peers to determine whether the applicant is guilty or innocent, the Courts have a duty to protect the constitutional rights of persons and will intervene to stop a trial where there is a real or serious risk of an unfair trial.
I am satisfied that the law stated in H. v. The Director of Public Prosecutions (Unreported, Supreme Court, 31st July, 2006) does apply to this case. Therefore, the relevant 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 applicant has failed to establish that there is a real or serious risk that by reason of the delay he would not obtain a fair trial. Nor is this a case where it would be unfair or unjust to put the applicant on trial. Consequently I would dismiss the appeal and affirm the order of the High Court. However, in light of all the circumstances, I would affirm the order of prohibition against the respondent in relation to the complaint of M.K.