The former principal biochemist with the Blood Transfusion Service Board (BTSB), Cecily Cunningham, has claimed her right to a fair trial on charges relating to the infection of seven women with hepatitis C from contaminated blood products has been prejudiced by lengthy delays and the death of some key people at the blood board since the period in question.
The claim was made by Patrick J. McCarthy SC, for Ms Cunningham, at the opening yesterday before Mr Justice Liam McKechnie of a High Court action by Ms Cunningham, who retired from the board some years ago, aimed at securing an order prohibiting her trial.
In July 2003, Ms Cunningham, Hollybank Road, Clontarf, Dublin, and Dr Terry Walsh, formerly assistant national director with the BTSB, became the first two people to be charged in connection with the hepatitis C saga. Dr Walsh has since died and the proceedings against him consequently collapsed.
Ms Cunningham was charged before Dublin District Court with unlawfully and maliciously causing a noxious substance, namely infected anti-D, to be taken by seven women thereby causing grievous bodily harm contrary to the Offences Against the Person Act. The dates of the alleged offences are 1977, 1991 and 1992.
She secured leave in November 2003 to bring judicial review proceedings alleging that her right to a fair and speedy trial had been prejudiced both as a result of the delay between the commission of the alleged offences and the initiation of a prosecution, and also through culpable prosecutorial delay of almost seven years.
She contends that information on which the charges were brought against her was known to the Director of Public Prosecutions from the publication in March 1997 of the Finlay report into the hepatitis C saga, which followed an expert group report on the BTSB published in 1995.
Everything that was in the book of evidence served on Ms Cunningham in 2003 was available to the authorities in 1997, it is argued.
A Garda investigation was initiated after publication of the Finlay report and Ms Cunningham was questioned by gardaí in May 1999. In October 1999 a file was sent to the DPP but nothing more was heard by Ms Cunningham until July 2003 when she was arrested at her home.
Mr McCarthy yesterday said Ms Cunningham, who has no previous convictions, was "shocked" when she was arrested. She had co-operated at all times with the Garda investigation and "did nothing to hinder it".
As a result of dealing with the court and tribunal proceedings and the publicity given to those, Ms Cunningham had suffered from stress, depression and got panic attacks. She later began to develop new interests and had tried to move on with her life.
In her action, she contends that the deaths of key persons in the blood board and elsewhere have deprived her of critical evidence relating to several issues, including what information was shared within the board about the anti-D product and what instructions she received from her superiors.
Among those who had died were Seán Hanratty, Ms Cunningham's immediate superior, and Dr Jack O'Riordan, a former director of the board, the court heard.
Ms Cunningham was particularly prejudiced by the deaths of Dr O'Riordan and Dr Dane, a consultant in Middlesex, England, as their deaths had deprived her of critical evidence about contact between Dr O'Riordan and Dr Dane regarding the anti-D product, Mr McCarthy said.
In the absence of their evidence, the DPP was proposing to rely on "absolute hearsay" evidence from a Ms Biggs about a critical letter from Dr Dane to Dr O'Riordan, which letter was central to the charges relating to 1977 and 1991.
The case is expected to last several days.