U (M) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 28 April 2010
• Neutral Citation: [2010] IEHC 156
• Court: High Court
• Date: 28 April 2010

U (M) v DPP

JUDICIAL REVIEW

BETWEEN

M.U.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2010] IEHC 156

[No. 1208 J.R./2008]

THE HIGH COURT

CRIMINAL LAW

Delay

Prohibition - Prejudice - Specific prejudice - Loss of evidence - Materiality of unavailable evidence -Direction of trial judge as remedy to specific prejudice - Death of witnesses - Exceptional circumstances - Blackmail of accused by complainant - Serious risk of unfair trial - Principles to be applied - Evidence - Admissibility of evidence - Whether specific prejudice - Whether unavailable evidence material -Whether direction of trial judge would remedy prejudice-Whether exceptional circumstances - Whether blackmail of accused by complainant constituted exceptional circumstances - Whether serious risk of unfair trial - H v DPP [2006] IESC 55 [2006] 3 IR 575, McFarlane v DPP [2006] IESC 11 [2007] IR 134, DC v DPP [2005] IESC 77 [2005] 4 IR 281, T(P) v DPP [2008] IESC 39 [2008] 1 IR 701, J. O'C. v. Director of Public Prosecutions [2000] 3 I.R. 478, MG v DPP [2007] IESC 4 (Unrep, Supreme Court, 20/1/2007), JD v DPP [2009] IEHC 48 (Unrep, MacMenamin J, 3/2/2009) and O'Keeffe v District Judge Connellan [2009] IESC 24 [2009] 3 IR 643 applied - B v DPP [2006] IESC 67 (Unrep, Supreme Court, 21/12/2006), and P.L. v Judge Buttimer [2004] IESC 110 [2004] 4 IR 494 considered - Criminal Law Amendment Act 1935 (No 6) s 6 - Relief granted (2008/1208JR - MacMenamin J - 28/4/2010) [2010] IEHC 156

U(M) v DPP

Facts: The applicant sought an order of prohibition restraining the respondent from prosecuting him. The applicant was the brother of the complainant and in his mid-fifties and was charged with a number of accounts of indecent assault against his three sisters commencing at a time when he was eleven years of age. The applicant denied the allegations and maintained his innocence. The issue arose as to whether the loss of evidence was prejudicial and whether delay of the second named complainant against a backdrop of alleged blackmail rendered the trial unfair.

Held by Macmenamin J. That with respect to the second named complainant, the exceptional financial pressures would be sufficient to grant an order of prohibition and that with regard to all three of the complainants the items identified as specific prejudice in the course of the judgment were sufficient o warrant an order of prohibition. Much of the case of the prosecution was interlinked as to time and circumstances. The real difficulty of the case was that the prosecution and defence would be reliant on inadmissible evidence to prove or disprove their case. There was a significant risk of possibly prejudicial and untestable material becoming part of the factual backdrop of any trial. The process would not be lawful. Judicial review would be granted by way of prohibition on the grounds identified.

Reporter: E.F.

CRIMINAL LAW AMDT ACT 1935 S6

O'KEEFFE v DISTRICT JUDGE CONNELLAN & ORS 2009 3 IR 643 2009 IESC 24

H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

MCFARLANE v DPP & SPECIAL CRIMINAL COURT 2007 1 IR 134 2006/35/7440 2006 IESC 11

B (S) v DPP & DISTRICT JUDGE HARNETT UNREP SUPREME 21.12.2006 2006/5/852 2006 IESC 67

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

B (S) v DPP UNREP SUPREME 31.1.2007 (EX TEMPORE)

T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39

O'C (P) v DPP 2000 3 IR 87 2000/14/5259

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

G (M) v DPP UNREP SUPREME 30.1.2007 2007/25/5186 2007 IESC 4

D (J) v DPP UNREP MACMENAMIN 3.2.2009 2009 IEHC 48

1 1. On 30 ^th October, 2008, the applicant obtained an order for liberty to seek judicial review by way of prohibition or, in the alternative, an injunction by way of judicial review prohibiting or restraining the respondent from pursuing a prosecution entitled "The People at the suit of the Director of Public Prosecutions and M.U."

2 2. The background to this case is complex.

3 3. The applicant is a businessman. He is the brother of the complainant and is now in his mid fifties. He is charged with a number of accounts of indecent assault against his three sisters; B.U.; N.V. (née N.U.) and V.D.C. (née V.U.) commencing at a time when he was eleven years of age.

(i) B.U. (the first complainant)

4 4. It is alleged that the applicant committed indecent assault on eight occasions against his sister B.U. on various days between 21 ^st January, 1969 and 25 ^th January, 1971, contrary to common law, and as provided for in section 6 of the Criminal Law (Amendment) Act 1935.

(ii) N. V. (the second complainant)

5 5. There are 27 counts of indecent assault against the applicant in relation to his sister, N. V., said to have occurred on various dates between 22 ^nd August, 1965 and 22 ^nd August 1974.

(iii) V.D.C. (the third complainant)

6 6. Nine counts of indecent assault are alleged against his sister V.D.C. in relation to various days between 22 ^nd August, 1970 and 22 ^nd August, 1973. All the offences are stated to be contrary to common law and as provided for in section 6 of the Criminal Law (Amendment) Act 1935.

(i) B.U.: Background

7 7. B.U. is the second oldest sister. Her date of birth is 25 ^th September, 1961. She alleges that the applicant began indecently assaulting her in 1969 at the time when she was seven years old and the applicant was fifteen years old. It appears that B.U. discussed the allegations with the other complainants over a number of years. She first made a complaint to the applicant himself ten to twelve years ago. She later informed the gardaí of the said allegations on 5 ^th March, 2007.

(ii) N.V.: Background

8 8. The second complainant is N.V. She is four years older than B.U. Her date of birth is 22 ^nd August, 1957. She alleges that the applicant began indecently assaulting her in 1965 at a time when she was eight years old and at a time when the applicant was eleven years old. She contends she began to talk about the allegations when she and the other complainants had their children. She informed the gardaí of the allegations on 6 ^th March, 2007.

(iii) V.D.C.: Background

9 9. The third complainant is V.D.C. Her date of birth is 9 ^th October, 1958. She alleges that the applicant began indecently assaulting her from the time she was eleven years old and the applicant was sixteen years old in 1970. It appears that ten years prior to the making of her complaint she discussed the allegations with the other complainants on the steps of their mother's house. The third named complainant informed the gardaí of the allegations on 25 ^th May, 2007.

The applicant's interview by members of An Garda Síochána

10 10. As a result of these allegations, on 29 ^th June, 2007, the applicant voluntarily met the gardaí. He denied any of these allegations and has maintained his innocence ever since. For reasons that will become clear, it is of some relevance that at the interview meeting which took place with members of the gardaí he did not have the services of a solicitor and had no prior warning of the questions or the complainant's statements. At all stages he has made exculpatory statements.

11 11. The applicant was charged with the offences arising from the allegations in question and was sent forward for trial at the next sittings of Dublin Circuit Court.

The family circumstances

12 12. In order to understand the context of these allegations it is necessary to describe the unfortunate family circumstances of the U. family.

13 13. The father of the family is R.U. He was born on 21 ^st March, 1929. He is now aged 78 years. He currently stands charged with a range of indecent assaults against the complainants. These proceedings are pending before the courts. R.U. was married to Ma.K. who was born on 14 ^thDecember, 1923. She unfortunately died on 27 ^th December, 1995. Prior to her death she had suffered a significant degree of mental illness.

14 14. There are also similar charges pending against E.U. the second oldest brother in the family. It is alleged he also sexually assaulted his sisters over a considerable time span.

15 15. The children of the marriage between R.U. and Ma.K. Were:

(a) M.U., (the applicant,) born on 21 ^st January, 1954;

(b) E.U. born on 6 ^th May, 1955; ( also now charged)

(c) J.U. born on 17 ^th September, 1956; ( a son referred to later in the judgment)

(d) N.U. born on 22 ^nd August, 1957; ( now N.V., the second complainant)

(e) V.U. born on 9 ^th October, 1958; ( now V.D.C. the third complainant)

(f) A sister, T.U. born on 30 ^th September, 1959; ( who has made allegations about the applicant but is not a complainant)

(g) B.U. born on 25 ^th September, 1961; ( the first complainant)

(h) A son, K.U. born in 1962 who died at age five years old on 2 ^nd February, 1967; and

(i) A son, F.U. who was born on 6 ^th November, 1964 and who died on 12 ^th January, 1997.

16 16. The background circumstances of the family were apparently deeply dysfunctional. It is said that R.U., the father, was extremely domineering in his behaviour towards his wife and children. It is claimed he was violent and that he engaged in serious sexual misconduct with his children. Similar allegations are made against E.U., the second eldest brother. In light of the fact that criminal charges are pending against R.U., M.U., and E.U., it should be emphasised that each of the three are entitled to the presumption of innocence in relation to the charges.

The elapse of time

17 17. The elapse of time between the date of the offences alleged against the applicant and the grant of leave is very substantial. The earliest of the allegations go back to 1965. Thus the applicant is seeking to prohibit criminal proceedings relating to sexual offences which are said...