A.T. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 01 February 2019
• Neutral Citation: [2019] IEHC 54
• Court: High Court
• Docket Number: 2018 No. 501 J.R.
• Date: 01 February 2019

[2019] IEHC 54

THE HIGH COURT

JUDICIAL REVIEW

Simons J.

2018 No. 501 J.R.

BETWEEN

A.T.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Criminal proceedings – Delay – Risk of unfair trial – 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 sought 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 child sexual abuse, and included a single count of rape. The offences were alleged to have occurred over a three year period in the late 1970s. A significant feature of the case was that the alleged offences were said to have taken place at a family home shared by, inter alia, the applicant and the complainant. The applicant contended that the fact that certain other members of the household had since died had prejudiced him in his defence of the criminal proceedings. It was suggested that had the criminal proceedings taken place earlier, i.e. at a time when those family members were still alive, they might have been able to give evidence which would have been helpful to the applicant. In particular, it was suggested that the deceased family members might have been in a position to give evidence to the effect that the alleged offences could not have occurred in the cramped circumstances in which the extended family was living without them having noticed.

Held by the High Court that, on the facts of the case, given the particular circumstances including the great length of delay, and the death of the four witnesses, there was a real risk of an unfair trial. The court did not think that there was any warning which the trial judge could formulate to ensure a fair trial.

The Court held that it would make an order prohibiting the respondent, the Director of Public Prosecutions, taking any further steps in the criminal proceedings.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 1 February 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 child sexual abuse, and include a single count of rape. The offences are alleged to have occurred over a three year period in the late 1970s. As discussed presently, a significant feature of the case is that the alleged offences are said to have taken place at a family home shared by, inter alia, the Applicant and the Complainant. The Applicant contends that the fact that certain other members of the household have since died has prejudiced him in his defence of the criminal proceedings. It is suggested that had the criminal proceedings taken place earlier, i.e. at a time when these family members were still alive, they might have been able to give evidence which would have been helpful to the Applicant. In particular, it is suggested that the now deceased family members might have been in a position to give evidence to the effect that the alleged offences could not have occurred in the cramped circumstances in which the extended family was living without them having noticed.

2 There are two other features of this case which should be flagged now. First, the criminal proceedings are pending before the High Court exercising its criminal jurisdiction as the Central Criminal Court. There was some suggestion in the submissions made on behalf of the Director of Public Prosecutions (‘DPP’) to the effect that the threshold for judicial review might be higher in circumstances where the High Court is not being asked to supervise an inferior court.

3 The second feature is that, for the purpose of these judicial review proceedings, the DPP has sought to rely on hearsay evidence filed by way of affidavit sworn by a Garda Sergeant. This raises a question as to the extent to which the High Court, in exercising its judicial review jurisdiction, should seek to resolve factual disputes.

LEGAL TEST

4 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.’

5 Counsel on behalf of the Applicant, Micheál P. O'Higgins, SC, placed some emphasis on the recent judgment of the Court of Appeal in B.S. v. Director of Public Prosecutions [2017] IECA 342. Giving the majority judgment, Sheehan J. provides the following helpful analysis of the legal test.

‘15. At 17.36 Professor O'Malley states: In the penultimate paragraph of its judgement in H v DPP the Supreme Court said: “The issue for a 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 does not exclude wholly exceptional circumstances where it would be unfair or unjust to put the accused on trial”. The conjunction of these two sentences suggests that, if the circumstances are sufficiently exceptional and compelling, a trial may be prohibited even if the applicant is unable to point to any specific factors demonstrating or indicating the risk of an unfair trial. The circumstances in which a trial may be prohibited on this residual ground will naturally be highly fact-specific.

In P.T. v. DPP [2008] 1 I.R. 701 the Supreme Court stated at p. 708:

“This is a test based on “wholly exceptional circumstances”, which are essentially fact and thus previous cases are of limited value as precedents. It is necessary when analysing this aspect of the test to consider the particular facts of a case, and to determine whether it would be unfair or unjust to put that specific accused on trial in all the circumstances of the case.”

16. In McFarlane v DPP [2006] IESC 11, Hardiman J. on behalf of the majority of the Supreme Court stated para. 24, ‘In order to demonstrate that risk (of an unfair trial) there is obviously a need for an applicant to engage in a specific way with the evidence actually available so as to make the risk apparent… This is not a burdensome onus of proof: what is in question, after all, is the demonstration of a real risk, as opposed to an established certainty, or even probability of an unfair trial”.’

6 Sheehan J. also suggested that it may be instructive to consider how fair trial rights have been viewed on the civil side, citing the judgment of the Court of Appeal in Cassidy v. The Provincialate [2015] IECA 74.

7 Mr O'Higgins, SC sought to develop this theme before me. Whereas Mr O'Higgins, quite properly, accepted that there are distinguishing features in Cassidy—not least of which is that the individual alleged to have perpetrated the child sexual abuse had since died—counsel suggested that the evidential difficulties highlighted in that case were similar to those which arise in criminal proceedings.

8 To understand this argument, it is necessary to consider Cassidy in more detail. That case involved a claim for damages arising out of alleged assault, abuse, rape and false imprisonment said to have been perpetrated by an employee of the Religious Sisters of Charity. It was alleged inter alia that the religious order had vicarious liability for its employee. The events complained of were said to have taken place between 1977 and 1980. The personal injury proceedings were not instituted until 2012, i.e. more than thirty years later. It appears that the employee who was said to have perpetrated the abuse had since died.

9 The Court of Appeal dismissed the proceedings for inordinate and inexcusable delay. Irvine J., giving the judgment of the court, noted that whereas the death of the alleged perpetrator alone was of such prejudicial magnitude that it warranted the court determining the ‘balance of justice’ issue against the...