M (J) v DPP

CourtSupreme Court
JudgeMr Justice McCracken
Judgment Date28 July 2004
Neutral Citation[2004] IESC 47
Date28 July 2004

[2004] IESC 47

The Supreme Court

Murray CJ

Geoghegan J

McCracken J

M (J) v. DPP
Between :


The Director of Public Prosecutions



O'C (P) V DPP 2000 3 IR 87


Criminal law - Delay - Fair procedures - Right to expeditious trial - Application for order of prohibition - Sexual offences - Whether prosecutorial delay affected constitutional rights of applicant to fair and expeditious trial - Whether delay prejudicial - Whether risk of unfair trial should prosecution continue.

Facts: the applicant was prosecuted for various sexual assaults on children in the 1960s. The complainants first made their complaints in 1995. The applicant was first interviewed by the gardaí in 1997 and charged in 1999. In 2000 the book of evidence was served. The applicant complained of both complainant and prosecutorial delay and sought an order of prohibition restraining his further prosecution for the various alleged assaults. The High Court refused to grant the order sought. The applicant appealed to the Supreme Court.

Held by the Supreme Court in allowing the appeal and granting the order of prohibition sought that for complainant delay to be excused it had to be not only explained but the reasons for the delay had to be attributable at least in part to the actions of the abuser and for that purpose the court had to assume that the complaints made by the complainant were true. Prosecutorial delay could be excusable if it did not affect the applicant’s constitutional rights. Reasons which could affect a fair trial and cause prejudice to the applicant due to delay were: the totality of the delays in question; the inconsistencies in complainant’s statements; whether there was a danger of recollection being influenced by other complainants; the level of identification given by complainants and; the absence of records. Whilst delay in itself may not be sufficiently blameworthy to prohibit a trial, when that delay was considered in conjunction with the above reasons, there was a real risk that the applicant’s right to a fair trial would be in jeopardy.

Reporter: P.C.


Mr Justice McCracken delivered the 28th day of July 2004


This is one of a number of cases which have come before the Courts in recent years in which it is sought to prohibit the Respondent from taking any further steps to prosecute the Applicant in relation to sexual offences which are alleged to have taken place many years ago. While the Courts have endeavoured to lay down general principles regarding such cases, ultimately each case depends on its own facts.


The Applicant was a Christian Brother who for some years in the 1960s was based at an industrial school. He left the order in the mid 1970s. On 7 th July 1999 he was charged with 19 counts of indecent assault on JB and two counts of indecent assault on PB, all of which assaults were alleged to have taken place at the said industrial school, and in relation to PB, to have taken place between 28 thJanuary 1964 and 28 th January 1966.


The complainant PB was cared for in an orphanage until he was nine years old, and then was moved to the industrial school where he remained until he was 16 years old. He married at the age of 28 and moved to England where he worked for some 23 years, and then returned to Ireland.

The Complaints Against the Applicant

The Complainant JB made his initial complaint to the gardaí on 16 th June 1995. This complaint was made in relation to a Brother M, being a name which was somewhat similar to that of the Applicant, and which named this Brother M as the band teacher. He made three further statements on unknown dates, and included in his statements was a complaint of an extremely serious physical and sexual assault, alleged to have taken place in the presence of another named pupil, T McN.


The Complainant PB made his first statement on 21 st July 1995. In his statement to the gardaí on that occasion, PB made complaints of two specific incidents of sexual assault, being the two incidents in respect of which the Applicant has been charged. It was alleged that one such incident took place in the Applicant's dormitory and the other took place in the Complainant's dormitory. This statement referred to the assailant by the same name as had the statement by JB and made no reference to him being a band master. The statement also said that at the time of one offence the Complainant PB was between ten and twelve years of age and at the time of the other offence he was about twelve years old.


No further statements were taken from the Complainant PB until 1999. He made two further statements in that year, one before and one after the Applicant was charged. In one of those statements he simply corrected the name of the alleged abuser to that of the Applicant herein. In the other statement he referred to the Applicant as the band master and said that the first incident took place when he was 14 years old and the second incident when he was thirteen and a half years old. It may also be of some relevance that he said in that statement that the first person he ever told about the abuse was his wife when he get married in 1978.


The Complainant PB has also sworn an affidavit in these proceedings. In the course of that affidavit he has sworn that the contents of the three statements he made are true. He also stated in his affidavit that he had reported these incidents during his stay in the school to a "Summer Brother", whose name he did not recall. A "Summer Brother" is a member of the Christian Brothers Order who assisted in running the school during the summer months to relieve some of the Brothers who were there permanently. He said his complaint was dismissed, and that the summer Brother stated that what he alleged could not have happened because the person concerned was a Christian Brother. There was no mention of this in any of his statements.


In his affidavit, he stated that he made his initial complaint to the gardaí after meeting the Complainant JB and speaking to him in July 1995.

Relevant Dates

The Applicant complains of both complainant's delay and prosecutorial delay, and it is probably of assistance to set out the relevant dates:-


28 th January 1951 – Date of Birth of PB


28 th January 1964-28 th January 1966 — alleged offences against PB


16 th June 1995 — First complaint by JB


21 st July 1995 — First complaint by PB


23 rd May 1997 — Applicant interviewed by gardaí


25 th February 1998 — Applicant again interviewed by gardaí


1 stJuly 1998 — Garda file completed


14 th July 1998 — Garda file submitted to Superintendent's office


9 th November 1998 — Garda file submitted to State solicitor


17 th November 1998 — Papers sent to Respondent's office


12 th February 1999 — Respondents sought clarification on file from gardaí


13 th April 1999 – Garda replied to Respondent


3 rd June 1999 – Direction from Respondent to issue summons


18 th June 1999 – Application for summons


7 th July 1999 – Applicant charged at District Court


27 th April 2000 – Book of Evidence served

Complainant's Delay

In the Complainant's affidavit in these proceedings he avers that he made a complaint to a "summer Brother" while he was in the school. He states that he felt very let down by the response and he feels that he might be punished as a result of making a report of that nature, and made no further attempt to disclose the abuse during the remainder of his stay there. He says that he never told anyone of the incidents thereafter until his marriage in 1978, when he told his wife. The reason stated in his affidavit is that he was afraid he would not be believed and that people would consider he was insane. He also says that at the time allegations of that nature made by somebody in his circumstances against a member of a religious order would not have been believed. He says that he felt shame and disgust at what happened, and continued to have these feelings even after he recounted these events to his wife.


An affidavit was filed on behalf of the Respondent by Ruth Yoder, a clinical psychologist, who interviewed PB on 10 th March 2001. Her assessment in her report is in fact very positive and paints a picture of a man with normal personality, social and emotional functioning. She says he recounted his history in a clear manner with adequate concentration and attention and no obvious signs of adjustment problems. On a basic IQ test the result was borderline, but she says that this may be partly due to his low educational attainment, and that his true IQ may be higher. She concluded that overall PB appears to have made a good adjustment to the responsibilities of adult and family life, and she recounts his reasons for the delay in reporting the incidents in the same manner as those set out in his affidavit. She concludes that he suffered from...

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