The Director of Public Prosecutions v NB

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 29 July 2025
• Neutral Citation: [2025] IECA 158
• Docket Number: Record No: 237/2024

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

N.B.

Appellant

[2025] IECA 158

Edwards J.

McCarthy J.

Kennedy J.

Record No: 237/2024

THE COURT OF APPEAL

Judicial review – Prosecution – Prohibition – Appellant appealing against a judgment refusing to grant him an order prohibiting his prosecution – Whether the case came within the exceptional category of cases where it would be unjust to require the accused person to stand trial

Facts: The appellant appealed to the Court of Appeal against a judgment of the High Court ([2024] IEHC 137) delivered on 11 March 2024, and reflected in a High Court order of 11 April 2024 refusing to grant him certain reliefs sought by him in an application for judicial review (including, inter alia, an order prohibiting his prosecution in respect of an allegation of historical indecent assault). In support of the application, he advanced the following grounds: (1) the trial judge erred in law in discounting prejudice caused by the unavailability as potential witnesses of three family members on the basis that a fourth family member would be a prosecution witness who could be cross-examined by the defence; (2) the trial judge erred in law in discounting the duration of pre-trial stress and anxiety to the applicant on the basis that certain psychological supports could be put in place at his trial; (3) the trial judge erred in law in finding that the appellant’s case fell outside the exceptional category where it would be unjust to put him on trial; (4) the trial judge erred in law in failing to enumerate the criteria for a case to be deemed in the “exceptional category” and to apply those criteria to the case; and (5) the trial judge erred in preferring evidence in the report of a GP over what was contained in the psychologist’s report in circumstances where no oral evidence had been heard in respect of the issues which it was argued were in conflict.

Held by the Court that it found no error on the part of the High Court judge in concluding that there was no blameworthy prosecutorial delay. The Court found no error with regard to the trial judge’s approach to the deceased witnesses issue. The Court found no error in the approach of the High Court judge to the assessment of the medical evidence and in her approach to the claim of heightened stress and anxiety. The Court found that the issues raised by the appellant, whether they were considered individually or cumulatively, did not require it to intervene on the basis that the case came within the exceptional category of cases where it would be unjust to require a person in the position of the appellant to stand trial. The Court did not consider that the case was exceptional to that extent. The Court accepted that a threshold for admission to the exceptional category had not been specified with precision, but it was satisfied that on no view of the matter would it be justified in prohibiting the appellant’s trial. The Court considered that the High Court judge was right in believing that the judge presiding at the appellant’s criminal trial would be best placed to ensure that he was treated justly and fairly; that protection would be available to the appellant and would be more than adequate to ensure that his rights, and the rights of all others concerned, were appropriately vindicated. The Court found no error on the part of the High Court judge in concluding that the case did not come within the exceptional category of cases where it would be unjust to require the accused person to stand trial.

The Court upheld the judgment and decision of the High Court judge and dismissed the appeal.

Appeal dismissed.

FOR ELECTRONIC DELIVERY

APPROVED JUDGMENT

NO FURTHER REDACTION NEEDED

JUDGMENT of Mr. Justice Edwards delivered on the 29 ^th day of July, 2025 .

Introduction

1 . This appeal has been brought by Mr. N.B. (i.e. “the appellant”) against a judgment of the High Court (Bolger J. [2024] IEHC 137) delivered on the 11 ^th of March 2024, and reflected in a High Court Order of the 11 ^th of April 2024 (perfected on the 16 ^th of September 2024) refusing to grant the appellant certain reliefs sought by him in an application for judicial review (including, inter alia, an Order prohibiting the appellant's prosecution in respect of an allegation of historical indecent assault).

Background to this Appeal

2 . In 2016, an allegation was made by N.B's nephew, D.N (i.e., “the complainant”), that when he was a child the appellant had indecently assaulted him in a bedroom in his (DN's) family home on an unknown date between the 1 ^st of January 1987 and the 31 ^st of December 1988. The complainant was born in 1975 and the appellant in 1969, so there is approximately 6 years in age disparity between them. The allegation was to the effect that the appellant was visiting the complainant's home and that while he was there the complainant's mother sent the complainant upstairs to play. The complainant alleges that the appellant accompanied him upstairs and that while they were together in a bedroom the appellant had forced the complainant to perform oral sex on him.

3 . Therefore between 36 to 38 years has elapsed between the alleged offence and the date of this judgment.

4 . The complainant has had many adversities in his life, during which he has inter alia suffered addiction and substance abuse issues for which from time to time he has sought treatment and therapy, and he has also spent time in prison for various offences. He contends that over the years he made disclosures concerning this alleged indecent assault by the appellant to numerous persons, including family members, counsellors and therapists from whom he sought treatment, and a prison psychologist.

5 . The appellant was contacted by Tusla in relation to this allegation in June 2017 and was informed that they were investigating it. The appellant was co-operative with that investigation and was interviewed twice by a social worker on behalf of Tusla. Tusla deemed the complaint to be unfounded in 2019 and the appellant was notified of this by letter on the 16 ^th of January 2019.

6 . Tusla, as they were obliged to do, had at the commencement of their investigation duly notified the gardaí of the concerns that had been raised with them and a separate garda investigation was also commenced. The complainant provided a statement of complaint to gardaí on the 11 ^th of December 2017. The course of the garda investigation is described in detail in an affidavit of a Garda Ciarán Geraghty sworn on the 24 ^th of March 2023.

7 . It establishes, inter alia, that in accordance with normal police practice Garda Geraghty had sought to gather as much information as possible before interviewing his suspect. To that end he had taken up records from numerous bodies and institutions providing services with whom the complainant had had a potentially relevant engagement, a time consuming exercise. On the 20 ^th of April 2019, the appellant was contacted by Garda Geraghty and was apprised that gardaí had received a formal complaint from the complainant alleging that he had been indecently assaulted by him. Garda Geraghty arranged to meet the appellant and duly interviewed him on the 27 ^th of April 2019. Following this interview yet further records required to be taken up, and further it was deemed appropriate to make an application to the District Court for a s. 63 order in aid of that. A completed investigation file was sent to the Director of Public Prosecutions (“DPP”) on the 11 ^th of February 2021.

8 . The DPP directed that the appellant should be prosecuted for indecent assault on the 31 ^st of August 2021. The appellant was subsequently charged on the 15 ^th of September 2021 with one charge of indecent assault contrary to common law and as provided for by s. 62 of the Offences Against the Person Act 1861. A Book of Evidence was served on him on the 16 ^th of November 2021, and he was returned for trial before the Dublin Circuit Criminal Court.

9 . The appellant denies committing this alleged offence and has entered a not guilty plea to the charge.

10 . The appellant believes that he has been significantly prejudiced due to the significant time which has elapsed since the alleged commission of the offence, and contends that he cannot now get a fair trial. He points to delay in commencing proceedings against him, and in bringing the prosecution to trial. Further, he points to the loss through death of potentially exonerating witnesses, to heightened stress and anxiety because of the allegation and his prosecution against a background of pre-existing poor mental and physical health, and to the lack of explanation for the delays in his prosecution. He contends that individually and cumulatively the existence of these factors brings him within the exceptional category of cases where it would be unfair to put him on trial.

11 . In these circumstances the appellant sought leave from the High Court to apply by way of judicial review for various reliefs including, inter alia, an Order of Prohibition prohibiting his trial. Leave to apply for judicial review was granted on the 21 ^st of February 2022. However, the Order granting leave did not contain any stay. In the absence of a stay the Circuit Criminal Court proceeded on the 15 ^th of March 2022 to fix a date for the trial of the criminal proceedings, namely the 25 ^th of June 2024.

12 . The judicial review case came on before the High Court for substantive hearing on the 13 ^th of February 2024, and judgment was reserved. The High Court (Bolger J.) then delivered its judgment on the 11 ^th of March 2024, and in doing so refused to grant prohibition or other relief to the appellant. A final order dismissing the application was made on the 11 ^th of April 2024.

13 . The appellant has now appealed to the Court of Appeal against the High Court judge's said...