H.S. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 01 March 2019
• Neutral Citation: [2019] IEHC 107
• Court: High Court
• Docket Number: 2018 No. 463 J.R.
• Date: 01 March 2019

[2019] IEHC 107

THE HIGH COURT

JUDICIAL REVIEW

Simons J.

2018 No. 463 J.R.

BETWEEN

H.S.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Criminal proceedings – Sexual offences – Delay – Applicant seeking to restrain the further prosecution of criminal proceedings pending against him – Whether there was a real risk that the trial would be unfair by reason of delay

Facts: The applicant applied to the High Court seeking to restrain the further prosecution of criminal proceedings pending against him on the basis that there was a real risk that the trial would be unfair by reason of delay. The criminal proceedings involved allegations of indecent assault and rape against two complainants. The offences were alleged to have occurred during the period between 1 October 1974 and 18 October 1978 in the case of the first complainant, and during the period between 24 December 1977 and 29 June 1985, in the case of the second complainant. The respondent, the Director of Public Prosecutions, raised an objection that the judicial review proceedings were instituted outside the three-month time-limit prescribed under Order 84, rule 21 of the Rules of the Superior Courts.

Held by the Court that the application for judicial review was made within three months from the date upon which the grounds first arose. Applying S.H. v Director of Public Prosecutions [2006] 3 IR 575, the Court concluded that there was a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial.

The Court held that it would make an order in accordance with paragraph (d)(i) of the statement of grounds prohibiting the Director of Public Prosecutions from further prosecuting the applicant in respect of the prosecution as described therein.

Relief granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 1 March 2019

1 The applicant herein seeks to restrain the further prosecution of criminal proceedings pending against him on the basis that there is a real risk that the trial would be unfair by reason of delay. The criminal proceedings involve allegations of indecent assault and rape against two complainants. The complainants are sisters of the applicant. The offences are alleged to have occurred during the period between 1 October 1974 and 18 October 1978 in the case of the first complainant; and during the period between 24 December 1977 and 29 June 1985, in the case of the second complainant.

2 There are only two incidents in respect of which an identifiable date is specified in the statement of charges. The first is an incident which is said to have occurred on Christmas Eve 1977, and the second is an incident which is said to have occurred on the date upon which the applicant announced his engagement to his future wife. As discussed presently, a number of individuals who might otherwise have been expected to be in a position to provide evidence in relation to these events have since deceased or have no clear recollection of same. The unavailable witnesses include the applicant's own wife who died in 2012.

3 The Director of Public Prosecutions (‘ the DPP’) has raised an objection that the judicial review proceedings were instituted outside the three-month time-limit prescribed under Order 84, rule 21 of the Rules of the Superior Courts. This objection is addressed at paragraph 27 below.

4 In order to protect the anonymity of the complainants, I have excluded any references to people or places which might otherwise have allowed them to be identified. I will also refer to the complainants simply as the ‘ first complainant’ and the ‘ second complainant’, respectively. The use of this impersonal language should not be mistaken for any lack of sympathy on the part of the court for the complainants and the difficult circumstances of their early childhoods. Rather, it is solely intended to assist in the protection of their identities.

LEGAL TEST

5 The parties were in broad agreement as to the legal test governing an application to restrain criminal proceedings on the grounds of delay. Both parties cited the judgment of the Supreme Court in S.H. v. Director of Public Prosecutions [2006] 3 I.R. 575. Murray C.J. formulated the legal test as follows at [46] to [49].

‘The court's judicial knowledge of these issues has been further expanded in the period since that particular case. Consequently there is judicial knowledge of this aspect of offending. Reasons for such delay are well established, they are no longer “new factors”.

Therefore, I am satisfied that it is no longer necessary to establish such reasons for the delay. 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.

Thus, the first inquiry as to the reasons for the delay in making a complaint need no longer be made. As a consequence any question of an assumption, which arose solely for the purpose of applications of this nature, of the truth of the complainants' complaints against an applicant no longer arises. 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.

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 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.’

6 Counsel on behalf of the DPP, Ms Eilis Brennan, SC, placed some emphasis on a line of case law which indicates that the issue of delay should generally be left to the trial judge to address. Reference was made, in particular, to the judgment of the Court of Appeal in M.S. v. Director of Public Prosecutions [2015] IECA 309.

‘66. First, in the light of the decision of the Supreme Court in SH it is not open to this Court to declare that after the lapse of a stated period of years a prosecution may not take place. Even though, therefore, the delays in the present case are, by any standards, exceptionally long, ranging as they do back to complaints dating from 1964/1965, the Court cannot say on some ex ante basis that these prosecutions should not proceed by reason of delay.

67. Second, while there is no doubt at all but that the lengthy delays in the present case present difficulties for both prosecution and defence alike, it cannot nevertheless be stated that these delays have caused irremediable prejudice in terms of either missing witnesses or evidence. Experience has shown that, special circumstances aside, the court of trial is generally better placed than the judicial review judge to make an assessment of this matter, particularly having regard to the run of the evidence and the evidence actually tendered. As O'Malley J. pointed out in PB, the trial judge's role is not confined simply to giving appropriate warnings to the jury, but extends further to the power to stop the prosecution continuing with a prosecution should the justice of the case so require it. It must be emphasised, however, that the system of criminal justice envisaged by the Constitution is one which (subject to exceptions which are not here relevant) involves trial by jury and not by judge alone. Accordingly, in this context the mere fact of a long delayed complaint is not in itself a reason by which a criminal charge of this nature should be dismissed.’

7 As appears from the foregoing, Hogan J. cited with approval the judgment of the High Court (O'Malley J.) in P.B. v. Director of Public Prosecutions [2013] IEHC 401. Towards the end of her judgment in that case, O'Malley J. had summarised the effect of the Supreme Court judgment in S.H. v. Director of Public Prosecutions [2006] 3 I.R. 575 as follows.

‘59. The point of the decision in S.H and the authorities that followed is that the difficulties caused to a defendant in cases of old allegations (and I do accept that there can be very real difficulties) are best dealt with in the court of trial. Trial judges are now accustomed to dealing with such cases and using such powers as are necessary to prevent injustice to accused persons. It is perfectly clear that a trial judge is not restricted to simply giving warnings to the jury but may, where necessary in exceptional cases, withdraw the case from the jury on the basis that the difficulties for the defence are such that it is not just to proceed. Such a decision, in the normal course of events, will often be better taken in the light of the evidence as actually given rather than as speculated about in judicial review proceedings.’

8 Ms Brennan, SC also relied on the judgment of the Supreme Court in Nash v. Director of Public Prosecutions [2015] IESC 32, [23].

‘23. It will be noticed that the law has moved on since those decisions. The trial judge now has the primary role in decisions of this kind and judicial review is rarely appropriate. An application to the trial judge is an alternative to judicial review. As Clarke J states in his judgment on this appeal, if the case is one that there has been a diminishment in the availability of a trial that would be otherwise complete in every respect due to the factors complained of, then this judgment would concur that since the appropriate balance may best be seen by the trial judge in the context of a...