Beyond the reach of justice? Complainant delay in historic child sexual abuse cases and the right to a fair trial

• Author: Sinéad Ring
• Position: BCL (Law and German), LLM (Criminal Justice), PhD Candidate, Centre for Criminal Justice and Human Rights, University College Cork. Irish Research Council for the Humanities and the Social Sciences Scholar
• Pages: 162-203

Judicial Studies Institute Journal [2009:2

162

BEYOND THE REACH OF JUSTICE?

COMPLAINANT DELAY IN HISTORIC

CHILD SEXUAL ABUSE CASES

AND THE RIGHT TO A FAIR TRIAL

SINÉAD RING*

I. INTRODUCTION

The publication of the Commission to Inquire into Child

Abuse’s Final Report1 (the Ryan Report) in May of this year has

forced Irish society to face up to its appalling history of child

physical and sexual abuse in State-run institutions. Few could

have imagined the scale and intensity of the abuse catalogued in

the Report. The publication has generated a renewed public

interest in the criminal justice system’s role in prosecuting those

accused of the sexual abuse of children. However, ever since

society’s “discovery” of child sexual abuse in the mid-1990s,2

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* Sinéad Ring, BCL (Law and German), LLM (Criminal Justice),

PhD Candidate, Centre for Criminal Justice and Human Rights, University

College Cork. Irish Research Council for the Humanities and the Social

Sciences Scholar. Email: sineadmaryring@gmail.com

1 Commission to Inquire Into Child Abuse, Final Report (Stationery Office,

2009).

2 See Lalor (ed.), The End of Innocence: Child Sexual Abuse in Ireland

(Oak Tree Press, 2001). In May 1999 the States of Fear documentary exposed

the extent of physical and sexual abuse within State-funded religious

institutions, giving rise to a public outcry and political and legislative

initiatives. The Statute of Limitations (Amendment) Act 2000 altered

limitation periods for civil actions where sexual abuse suffered as a child was

claimed. The Sex Offenders Act, 2001 established a Sex Offenders Register.

In 2002 the Government indemnified the religious orders against 90% of the

compensation claims. The Residential Institutions Redress Board Act was set

up under the Residential Institutions Redress Act, 2002. The Commission to

Inquire into Child Abuse was established by legislation in 2000, and was

initially chaired by Laffoy J. She resigned in September 2003, complaining of

lack of co-operation from the Government and inadequate resources.

The Commission, chaired by Ryan J., issued its Final Report in May 2009.

The Renewed Programme for Government 2009 contains a commitment to

fully execute the Government Implementation Plan in respect of the Ryan

2009] Delay in historic child sexual abuse cases 163

the Irish courts have been grappling with the problems posed by

historic allegations of abuse, made by adults who claim they were

victimised as children. In some cases the time lapse between the

alleged abuse and the making of a complaint to the authorities can

be as much as 40 years. Lengthy lapses of time between the

alleged offence and reporting present huge challenges to the

criminal process, which must vindicate the accused’s

constitutional right to a fair trial, while also seeking to prosecute

these most serious of allegations.

The core argument of this article is that in historic

childhood sexual abuse prosecutions, the risk of an unfair trial is

unconstitutionally high. Support for this contention is found in

two sets of decisions by the Superior Courts relating to historic

child sexual abuse cases: the prohibition decisions of the High

Court and the Supreme Court; and the decisions of the Court of

Criminal Appeal in appeals brought by persons convicted on

historic charges of child sexual abuse. It is argued that in light of

the risks of an unfair trial, guidance from the appellate courts on

directions and warnings to the jury and on rulings in evidential

matters arising from the delay is urgently needed, in order to

safeguard accused persons’ due process rights.

The article first examines the decisions of the High Court

and the Supreme Court in prohibition applications. In these cases

the courts consider whether the trial of the charges should be

halted due to the lapse in time between the alleged abuse and the

trial.3 Prohibition applications present the courts with an

invidious dilemma: how to ensure the defendant is not put at risk

of an unfair trial, while at the same time recognising that delay in

reporting is a common feature in many child sexual abuse cases.

It is argued that the accused faces an almost impossible task in

trying to show prejudice, and that the reviewing courts rely to an

unjustified degree on the power of the trial judge to counter the

effects of delay by way of rulings and directions to the jury.

That this over-reliance on the trial judge’s ability to

protect due process in historic child sexual abuse cases is not

Report: Renewed Programme for Government, 10 October 2009, available at

www.taoiseach.ie.

3 This article does not deal with the separate but related issue of prosecutorial

and systemic delay; relevant cases are listed at n. 72, below.

Judicial Studies Institute Journal [2009:2

164

merited is revealed in the second part of this article, which

examines the decisions of the Court of Criminal Appeal in

historic child sexual abuse prosecutions. While the Court is

willing to overturn convictions on the basis of inadequate

warnings, trial judges are left in the dark as to what constitutes an

adequate warning on issues such as delayed reporting,

relationships of dominion, inhibition, corroboration, and

admissibility of evidence.

Finally, two further matters relating to the prosecution of

delayed complaints of childhood sexual abuse are explored:

repressed memories, and the disclosure of the complainant’s

medical and psychiatric reports. These are critical issues that go

to the heart of the fairness of historic child sexual abuse cases.

However they have yet to be subjected to sustained analysis and

consideration by the Irish Superior Courts.

In concluding, it is argued that in light of the difficulties

facing accused persons in trying to mount a defence, and in trying

to establish prejudice, and in light of the lack of safeguards in

terms of (a) judicial rulings on evidential and procedural matters

arising from the delay, and (b) directions to the jury on how to

incorporate the fact of delay into their deliberations, the risk of an

unfair trial is unconstitutionally high, and guidance is urgently

needed for trial judges in historic child sexual abuse cases.

II. DELAY AND THE RIGHT TO A FAIR TRIAL

Unlike summary offences, indictable offences are not

subject to any limitation period.4 However, despite the lack of an

express constitutional right to a speedy trial, the courts have

interpreted Article 38.1 of the Constitution to include an

entitlement to a trial with reasonable expedition.5 Delay in the

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4 This is the case even where an indictable offence is tried summarily:

D.P.P. v. Logan [1994] 3 I.R. 254; S. v. D.P.P. (Supreme Court, unreported, 19

December 2000).

5 Walsh, Criminal Procedure (Round Hall, 2002), p. 17; The State (Healy) v.

Donoghue [1976] 1 I.R. 325; In Re Singer 97 I.L.T.R. 131; D.P.P. v Byrne

[1994] 2 I.R. 236; C. v. D.P.P. [2009] I.E.H.C. 400. The fact that the

entitlement to a trial with reasonable expedition is implicit in Article 38.1 does

not dilute its weight: The State (O’Connell) v. Fawsitt [1986] I.R. 362 and

D.P.P. v. Byrne [1994] 2 I.R. 236. However, “[t]he right of an accused person