J.J. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 03 July 2021
• Neutral Citation: [2021] IEHC 564
• Court: High Court
• Docket Number: [Record No. 2020/297 JR]

Between

J.J.

Applicant

and

The Director of Public Prosecutions

Respondent

[2021] IEHC 564

[Record No. 2020/297 JR]

THE HIGH COURT

JUDICIAL REVIEW

Criminal trial – Indecent assault – Delay – Applicant seeking to prohibit a criminal trial – Whether there had been inordinate and inexcusable delay in the commencement of criminal proceedings against the applicant

Facts: The applicant applied to the High Court seeking to prohibit a criminal trial in respect of 358 allegations of indecent assault, spanning a period of time commencing on 1 May, 1967 and ending on 14 August, 1984. All four complainants were nephews of the applicant. The applicant claimed that there had been inordinate and inexcusable delay in the commencement of criminal proceedings against him and he asserted that the delay in the proceedings had given rise to the accumulation of prejudicial circumstances leading to a real danger of an unfair trial taking place. He asserted, inter alia, that as a result of delay certain witnesses and documents were no longer available to him and, coupled with his ill-health, there were wholly exceptional circumstances creating a real and present danger of an unfair trial taking place if the criminal proceedings were allowed to continue. This was said to justify the making of an order of prohibition and/or injunction to restrain the respondent, the Director of Public Prosecutions, from advancing the prosecution any further.

Held by the Court that, having examined the evidence before it, the result was that no exceptional factor emerged, nor was it the case that, taken together, a number of, on their own unexceptional, factors cumulatively constituted the exceptional, or placed this case in the category outside the norm, as identified by the Supreme Court in DPP v CCe [2019] IESC 94. Thus, having regard to the guidance given by the Supreme Court in CCe, the Court held that it was required to refuse the relief sought by the applicant, leaving the applicant in the position whereby the issues canvassed in the application could be ventilated before the trial court which would be in a far better position to make an assessment, in the context of an actual trial as it developed, as to whether or not the applicant had suffered prejudice, incapable of being remedied, so as to give rise to the real risk of an unfair trial.

The Court held that, lest it was wrong in that view, it engaged with the omnibus application in the context of authorities upon which the applicant placed particular reliance. Either route produced, in the Court’s view, the self-same result i.e. the refusal of the relief sought. The Court was satisfied that this was an application which must be dismissed.

Application dismissed.

JUDGMENT OF Mr. Justice Mark Heslin DELIVERED ON THE 3RD DAY OF JULY, 2021.

Introduction

1 This case comes before the court in circumstances where the applicant, who is now 80 years of age, seeks to prohibit a criminal trial in respect of 358 allegations of indecent assault, spanning a period of time commencing on 01 May, 1967 and ending on 14 August, 1984. There are four individual complainants whom I will refer to as PM, JM, MJ and AJ. All four complainants are nephews of the applicant. I will presently look closely at the pleadings in this case but, for present purposes, it is sufficient to say that the applicant claims that there has been inordinate and inexcusable delay in the commencement of criminal proceedings against him and he asserts that the delay in the proceedings has given rise to the accumulation of prejudicial circumstances leading to a real danger of an unfair trial taking place. He asserts, inter alia, that as a result of delay certain witnesses and documents are no longer available to him and, coupled with his ill-health, there are wholly exceptional circumstances creating a real and present danger of an unfair trial taking place if the criminal proceedings are allowed to continue. This is said to justify the making of an order of prohibition and/or injunction to restrain the respondent from advancing the prosecution any further.

Certain relevant facts

2 The applicant is a retired plasterer and he resides alone on what was previously the family landholding. He has no previous convictions and the only allegations faced by him constitute the allegations contained in the relevant Bill returned to the relevant Circuit Court Criminal sessions.

3 The allegations made by PM (who was born in 1957) span a timeframe commencing 01 May, 1967 and ending 25 May, 1973. These comprise charges 1–119, inclusive. The assaults are alleged to have occurred in the applicant's family home where he resided with his parents. The alleged assaults took the form of inappropriate touching of the anal area advancing to forced anal intercourse and a single incident of oral sex. These alleged assaults are alleged to have occurred in circumstances where PM, who was then resident in the United Kingdom, would travel to Ireland for holidays totalling, PM suggests in his statement, 10 weeks (including 6 weeks during the summer months, 2 weeks at Christmas and 2 weeks at Easter. All alleged assaults are alleged to have occurred in the applicant's bed in his bedroom. PM describes the bedroom as containing one double bed, a wardrobe and a dresser with drawers and he drew a sketch of same. The applicant asserts that he left home in 1959 and resided and worked in the UK until 1972, whereupon he returned to Ireland to take up employment in Dublin, where he worked until 1978 before returning to the family home. The applicant was 26 years of age in 1967 and asserts that he was living and working in London, returning occasionally to the family home. PM acknowledges that the applicant was working away during that year, in Dublin and London mostly. PM states that the applicant was at home to do the hay and the turf and at Christmas.

4 The allegations made by JM (born 1960) relate to the period commencing 01 May, 1973 and ending on 31 August, 1976. The alleged assaults took place in the applicant's family home, namely, the home he shared with his parents, and in the applicant's car. It is alleged that the assaults took place in the applicant's bed and took the form of touching and masturbation of a mutual nature and escalated to anal penetration. The allegations relating to JM comprise charges 120–341, inclusive. JM is a brother of PM. JM resided, with his family in Great Britain until 1975, before moving to Northern Ireland. JM travelled to and spent summers in the applicant's parents' home. JM suggests that, when he was around eleven or twelve years of age, the applicant had returned from Dublin and was working as a plasterer. JM suggests that the applicant drove ‘Mazda’ cars and that he was abused by the applicant from the age of eleven or twelve up to the age of sixteen when he was in the relevant family home during the summer months. JM says the abuse occurred once a week every week for the 7 weeks he was there in the summer. JM suggested that the applicant undertook to leave all the property that he would inherit to him. JM suggests that the anal penetration took place once or twice per week from 1971/72 to 1976/77 during the relevant 7-week period. JM suggests that the applicant would allow him to drive the applicant's car and would, while he was driving, touch him inappropriately and ultimately get the car to pull over, get him into the passenger seat and make him masturbate the applicant. JM identifies one of these locations as a layby known locally (by a particular title which I will refer to as the ‘SA’ carpark). JM has no recollection of being in the relevant locations other than during the summertime but believes he must have been there at Christmas also, because of his involvement with the ‘Wren Boys’. JM refers to there being an old house where he was never abused and a new house where he was. JM states that in the new house he would sleep in the visitor's room but when people came, he would sleep in the applicant's bedroom, in his bed, which he describes as uncle J's room. JM recollects there being a small double bed and describes the mattress and blankets. JM suggests that there was pornography under the applicant's pillow and under the mattress and that the applicant would show this to him as a precursor to being abused and anally penetrated. JM said there were no showers or water.

5 The allegations made by MJ (born 1969) relate to charges 343–358, inclusive. The relevant time period in respect of the alleged assaults commences on 01 August, 1977 and concludes on 14 August, 1984. The allegations take the form of inappropriate touching of the complaint's genitals and forced oral penetration. MJ resided with his family in the United Kingdom during the period of the allegations. He recalls going for holidays from 1977 onwards, always for the first 2 weeks in August, when he and his family would stay with his grandparents, being the applicant's parents. MJ suggests that the abuse continued up to 1984 when he was approximately fifteen and that, at this stage, the applicant lived at home with his parents, being MJ's grandparents. MJ suggests that he would always stay in the applicant's double bed. MJ suggests that there were pornographic magazines on the applicant's bed, three or four of same and that the applicant would show him those magazines. MJ suggests that the applicant would take him for spins and that he would sit on the applicant's lap and that there was a single occasion where the applicant allegedly forced MJ to perform oral sex on him. MJ also alleges that the applicant sought oral sexual gratification from calves which the applicant would look after during the summertime.

6 The allegation made by AJ (born 1967) relates to charge 342. He alleges that on a Saturday night, between 01 August and 14 August, 1980, the applicant climbed into bed with him and was rubbing the...