A Supreme Court judge has called for a change in procedure to allow full disclosure to the defence of all material in old cases of alleged sexual abuse of children.
Mr Justice Adrian Hardiman said a special jurisprudence has arisen in relation to such cases with prosecutions being routinely permitted after a lapse of time even though such prosecutions would not normally be permitted in either civil or criminal litigation.
The decision to allow the trials of very old cases carried with it a positive duty to take steps to ensure a fair trial, the judge added.
This was particularly so because lapse of time undermined memory and often made it difficult or impossible to challenge the complainant's account in any detailed way or to find evidence with which to contradict them.
As the law stands, the elaborate procedures for discovery in civil cases do not apply to criminal cases, the judge said.
Despite the recommendations of a working group in 2003, no provision has yet been made for the sort of preliminary hearing which might address these problems before a trial, he said.
Referring to the recent case of Nora Wall, a former nun who was wrongly convicted of the rape and indecent assault of a 10-year-old girl in Waterford and whose conviction has been certified a miscarriage of justice, the judge said this was a disturbing case of "grave shortcomings" in disclosure, including nondisclosure of the fact that a prosecution witness had previously made a dubious allegation of rape against another party.
Until a satisfactory provision for disclosure or discovery in criminal cases comes into being, applicants were entitled to raise the question of disclosure in judicial review proceedings challenging their prosecutions, he said.