T.S. v DPP

JudgeMr. Justice Hardiman,Mr Justice Fennelly,Mr Justice McCracken
Judgment Date22 June 2005
Neutral Citation[2005] IESC 43
Docket Number215/04,[S.C. No. 215 of
CourtSupreme Court
Date22 June 2005

[2005] IESC 43


Hardiman J.

Fennelly J.

McCracken J.

S (T) v DPP





L (P) v BUTTIMER & DPP 2004 4 IR 494 2004/27/6186 2004 IESC 110

C (P) v DPP 1999 2 IR 25

J (B) v DPP UNREP MCKECHNIE 12.2.2002 2002/13/3243

M (P) v MALONE 2002 2 IR 56



Sexual offences - Delay in making complaint - Whether delay between date of alleged offences and date of making complaint prejudicial to fair trial for applicant - Whether reasonableness of delay relevant - PL v. Buttimer [2004] IESC 110, [2004] 4 IR 494 and PC v. DPP [1999] 2 IR 25 considered - Prohibition granted (215/2004 - SC - 22/6/2005) [2005] IESC 43

S (T) v DPP

Facts: The applicant sought to prohibit his trial on the grounds of delay between the alleged commission of the offences and the trial. It was acknowledged by counsel for both parties that the period involved in the present case was probably the greatest period of delay that has ever come before the courts.

Held by the Supreme Court (Hardiman, Fennelly and McCracken JJ) in allowing the appeal that no sufficient explanation for the delay in making complaints had been given.

Per Hardiman J. The Court must not fail to consider that the final prejudice to accrue may be that of not being able to demonstrate prejudice.

Reporter: R.W.


JUDGMENT of Mr. Justice Hardiman delivered the 22nd day of June, 2005.


I have had the opportunity of reading the judgment of McCracken J. in this appeal. I agree with it and with the order which he proposes.


I should like to add a very few words by way of elucidation of my judgment in P.L. v. Her Honour Judge Buttimer (Supreme Court, unreported, 20th December, 2004), referred to in the judgment of McCracken J. in this case. There, this Court granted relief on the ground of a specific aspect of demonstrated prejudice. In addition (and therefore obiter), I invoked a portion of the judgment of Keane J. (as he then was) in P.C. v. DPP [1999] 2 IR 25, at 68:

"The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused person to defend himself or herself will be impaired".


As McCracken J. says in his judgment, the sentence quoted and others immediately preceding it have become known as " "the first test" as laid down in that case, the second test being whether the delay can be traced to the actions of the accused and the third being whether it can be shown that there was actual prejudice to the accused".


In P.L., I continued:


In the circumstance of this case, I would in any event have been prepared to grant relief on the basis of the first test. The case is a very old one. Apart from the question of the structure of the desk, there is no island of fact which can be used either to contradict the complainant or to demonstrate prejudice. The applicant has sought to develop certain islands of fact, but this has been countered by a retreat into vagueness. After so long a period, in the absence of any corroborating or supporting evidence, after the failure by the authorities to discover any reliable third party accounts (and I stress that one must presume that attempts to do so were made), I consider that a trial of this case would be unduly hazardous and that the issue as to whether or not the applicant abused the complainant is simply beyond the reach of fair litigation".


Cases like this one, allegations of sexual abuse made after a long period of time, have perhaps predictably given rise to a great deal of anxious legal debate, both here and in other jurisdictions. The principles of our courts approach, laid down in P.C.and subsequently commented upon in many other cases, have involved the sort of compromise that is perhaps inescapable when two strong and competing rights are in issue. The jurisprudence is not yet fully formed and, in some aspects, not easy to follow. McCracken J. points out that there were three separate judgments in P.L.: that fact itself, as well as the detail of the judgments illustrates some of the themes that have arisen in the case law to date.


In light of this, I would first like expressly to state my agreement with a number of observations made by McCracken J. in his judgment. I entirely agree that:

"There is no doubt that, the longer the delay, the great the danger of prejudice and the more readily a court will infer prejudice. However, that does not mean that in all cases an unfair trial would result".


I also agree with McCracken J. that the examples he quotes from the judgment of Geoghegan J. in P.L. constitute circumstances in which a trial might fairly be had even after the passage of many years, and I fully agree that there may be other such instances. Perhaps more fundamentally, I entirely agree with McCracken J. when he says, having pointed out the manner in which lapse of time compromises the prospects of a fair trial:

"However it must be remembered that time limits on prosecutions are primarily a matter for the legislature, which in its wisdom has determined that there should be no time limits in the case of indictable offences. It is not for this court to amend the law in any way in that regard, but only to uphold the constitutional right of the appellant to a fair trial."


I wish secondly to emphasise that I would have applied the first test in the circumstances of P.L., not because some arbitrary number of years had elapsed but because in the circumstances of that case, and apart from any demonstrated prejudice, a real and serious risk of prejudice arose simply from the length of the time lapse combined with the absence of other sources of information.


It is not desirable in these cases to enter into a purely theoretical debate and I hope I have not done so. But I have been deeply impressed, in light of the facts of some of the cases discussed in my judgment in P.L., by the proposition that, in certain cases at least, it is the result of sheer chance and the vagaries of fortune that prejudice can be demonstrated at all. When lapse of time is measured in decades, and perhaps even after shorter times as in B.J., one must not fail to consider that the final prejudice to accrue may be that of not being able to demonstrate prejudice. Up to the present, most cases have been dealt with on the basis of the third test in P.C.,whether actual prejudice can be shown. But there will always be a number of cases, probably, one hopes a small number, in which (to adapt a well known phrase) absence of evidence of prejudice is not evidence of its absence. It is that consideration, in my view, which underlies the necessity to preserve what has become known as the first test in the judgment of Keane J. in P.C.


Judgment of Mr Justice Fennelly delivered the 22nd day of June, 2005


I agree with the order proposed by both Hardiman J and McCracken J. Hardiman J has, nonetheless, and rightly drawn attention to the difficult jurisprudential task which the Court is required to perform in disposing of the seemingly unending line of cases of delayed prosecution for sexual abuse. The possible variety of interpretation of the existing jurisprudence is well illustrated by the three judgments delivered as recently as six months ago in PL v Her Honour Judge Buttimer( unreported 20th December 2004).


McCracken J, in his judgment in the present case rejects "the proposition that the passage of time alone would be grounds for the prohibition of a trial." I am not persuaded that such a clear proposition can be derived from the case law. Hardiman J explains that his own judgment in PL was not based on the fact that "some arbitrary number of years had elapsed but because in the circumstances of that case, and apart from any demonstrated prejudice, a real and serious risk of prejudice arose simply from the length of the time lapse combined with the absence of other sources of information."


In my own judgment in PL,I interpreted the existing case law as containing a "special jurisprudence" applicable to child sexual abuse cases, whereby an accused person might be precluded from relying on what McCracken J calls the "first test" because, by reason of dominance or some other reason (usually psychological inhibition), the delay in complaining could be attributed to the accused himself. In effect, I believed-and still believe-that this is a sort of exception to the first test.


Geoghegan J, however, specifically disagreed with my interpretation of the "special jurisprudence." He found himself "unable to agree...... that the case law establishes that in a prosecution for sexual offences prohibition can never be granted on the ground of delay alone." He was "of opinion that that[this] is a reserve power to be exercised by a court in a rare but appropriate case in relation to any criminal prosecution whether sexual or non-sexual where otherwise there would be a real and serious risk of an unfair trial or where in a more general sense the trial would not be "in due course of law" as for instance where there has been an abuse of process or significant prosecutorial misbehaviour."


Clearly, this is a matter for further elaboration. On closer reading, there does not appear to me to be any divergence in principle between the views of Hardiman J and Geoghegan J on the one hand and my own, on the other, regarding the possibility of halting a prosecution on the ground of extreme delay alone. For present cases, it suffices to say that I agree with the conclusion of McCracken J that the explanations for the very extreme delay in the present case...

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