M.N. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 13 August 2021 |
| Neutral Citation | [2021] IEHC 550 |
| Court | High Court |
| Docket Number | 2020 No. 516 JR |
[2021] IEHC 550
2020 No. 516 JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Criminal trial – Delay – Applicant seeking to prohibit criminal trial on grounds of delay – Whether the proceedings had been taken outside the three-month time-limit prescribed for judicial review proceedings
Facts: The applicant was charged with a number of offences arising out of child sexual abuse said to have occurred during the years 1984 and 1985. The prosecution was pending before the Circuit Criminal Court. The applicant applied to the High Court to prohibit the criminal trial on the grounds of delay and prejudice. The applicant objected that the proceedings had been taken outside the three-month time-limit prescribed for judicial review proceedings under Order 84, rule 21 of the Rules of the Superior Courts.
Held by the Court that the application for judicial review had been made within three months of when the grounds of challenge first arose; the additional documentation was only disclosed in June 2020, and the ex parte application for leave to apply for judicial review was moved on 27 July 2020. The Court held that the grounds of challenge advanced by the accused were such that the court of trial was undoubtedly better placed to assess same than was the court of judicial review.
The Court held that this was not one of those exceptional cases where there is cogent evidence demonstrating the real risk of an unfair trial such as to justify an order of prohibition being made by the High Court in judicial review proceedings. The Court refused the application for judicial review.
Application dismissed.
Giollaíosa Ó Lideadha, SC and James McCullough for the applicant instructed by Michael Hennessy & Company Solicitors
Sunniva McDonagh, SC and Kieran Kelly for the respondent instructed by the Chief Prosecution Solicitor
JUDGMENT of Mr. Justice Garrett Simons delivered on 13 August 2021
This matter comes before the High Court by way of an application to prohibit a criminal trial on the grounds of delay. The applicant has been charged with a number of offences arising out of child sexual abuse said to have occurred during the years 1984 and 1985. The prosecution is pending before the Circuit Criminal Court.
The applicant will be referred to throughout this judgment as “ the accused” and the victim of the alleged sexual abuse will be referred to as “ the alleged victim” or “ the complainant”. These terms reflect the fact that no criminal trial has yet taken place and the accused continues to enjoy the presumption of innocence. The accused has averred in his grounding affidavit that he has given instructions to enter a plea of not guilty, and wishes to contest the allegations against him.
The resolution of these judicial review proceedings requires the High Court to address two issues in sequence, as follows. First, it is necessary to rule upon an objection that the proceedings have been taken outside the three-month time-limit prescribed for judicial review proceedings under Order 84, rule 21 of the Rules of the Superior Courts. Secondly, it is necessary to consider whether the allegations of delay and prejudice are ones which should be left to the trial judge or, alternatively, whether they meet the high threshold for intervention by way of judicial review as prescribed by the Supreme Court in Nash v. Director of Public Prosecutions [2015] IESC 32 and subsequent case law.
The accused has been charged with eighteen counts of indecent assault. The offences are alleged to have occurred between the dates of 26 February 1984 and 3 September 1985. As of the date of the first of the alleged offences, the accused would have been fourteen years of age and the alleged victim would have been three years of age. The offences are said to have occurred in circumstances where the accused's mother had been providing childminding services at her family home.
As part of the disclosure process in the context of the pending criminal prosecution, the accused has been furnished with certain documentation from 1984 and 1985. It appears from this contemporaneous documentation that the alleged child sexual abuse came to the attention of the alleged victim's parents in October 1985. More specifically, it appears that at this time the child described to her parents certain acts which allegedly had been carried out by the accused. The parents arranged to have the child examined at the sexual assault treatment unit of a named hospital (the precise details have been omitted to protect the identity of the parties). It seems that the complainant may have had further dealings with the sexual assault treatment unit in 1994.
It further appears from the contemporaneous documentation that a separate allegation of child sexual abuse, involving a different child, had been made against the accused in 1985. This latter allegation had been reported to An Garda Síochána. It is not entirely clear, however, from the limited documentation which survives from 1985 whether An Garda Síochána had also been notified of the allegations which now form part of the criminal proceedings as against the accused. As discussed presently, counsel for the accused invites the court to draw the inference that An Garda Síochána had been so notified.
The contemporaneous documentation includes the minutes of a case conference dated 31 October 1985. The minutes purport to record the events at a case conference on 24 October 1985. The case conference had been convened in respect of both sets of allegations, and had been attended by a number of social workers and a medical doctor from the sexual assault treatment unit.
The minutes of the case conference include the following passages.
“Sr. Peggie asked what was being done about [M.N.], the abuser. Dr. Woods said that he has been sent to John of Gods for therapy. He was badly beaten up by his father when his father was told about what [M] had done. Dr. Woods said that [M] was very reluctant to admit to anything at all.
Dr. Murphy then discussed the future work in relation to both children.
Dr. Woods informed the Conference that ‘sexual abuse’ is a misdemeanour in the eyes of the Law, therefore, the Police are under no obligation to prosecute offenders and it is therefore hard to get offenders to get treatment. Also, there is no therapeutic resource for offenders as yet in Dublin. It was generally agreed that laws needed changing and that a treatment centre for abusers should be acquired.”
The minutes also contain the following summary of interviews with the complainant.
“[Named redacted] subsequently saw Dr. Woods three times. Initially, it was hard to get information from her but finally she spilt the beans. Dr. Woods described [Name redacted]'s mother as very sensible and matter-of-fact and someone who was coping very well with the difficulties.
[Name redacted] has also mentioned that [M] was ‘mean’ to her, but hasn't yet disclosed how or what this means”.
The contemporaneous documentation indicates that video recordings were made of a number of interviews with the complainant. These video recordings are no longer available. It is unclear as to whether they have been lost, misplaced or destroyed.
The complainant made a formal complaint to An Garda Síochána in June 2016. The accused gave a voluntary cautioned statement to An Garda Síochána in September 2018. Certain admissions were made but this court has been informed that the admissibility of the admissions made and the basis upon which they were made will be challenged at trial.
The first issue to be addressed is whether these proceedings have been instituted within time. Order 84, rule 21 provides that judicial review proceedings must, generally, be instituted within three months from the date when grounds for the application first arose. This is subject to the court's discretion to extend time if certain criteria are fulfilled.
In order to determine when the grounds first arose, it is, obviously, necessary to consider the case that is actually being advanced by an applicant for judicial review. In the present proceedings, the case turns largely on the fact that the occurrence of the child sexual abuse had come to the attention of the victim's parents at the time. The accused invites the court to infer from the contemporaneous documentation that An Garda Síochána had also been notified of the alleged child sexual abuse. The accused then seeks to advance an argument that there has been blameworthy prosecutorial delay. Reliance is placed in this regard on the special duty imposed on the State authorities, over and above the normal duty of expedition, to ensure a speedy trial in the case of a criminal offence alleged to have been committed by a young person (citing Donoghue v. Director of Public Prosecutions [2014] IESC 56; [2014] 2 I.R. 762).
It is correct to say, as counsel for the Director of Public Prosecutions does, that the accused, through his legal advisors, would have been aware as early as November 2019 that the alleged offences had come to the attention of the parents and the hospital authorities in 1985. November 2019 is the date upon which the first tranche of disclosure documentation was furnished to the accused's solicitor. The documentation had been provided in the context of the criminal proceedings, which were then before the District Court.
The application for leave to apply for judicial review was not moved before the High Court until 27 July 2020. Crucially, however, the possible involvement of An Garda Síochána in 1985 is not apparent from the first tranche of disclosure documentation made available to the accused's legal team. It was only when further disclosure was provided in June 2020 that the...
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