The Supreme Court has unanimously ruled that alleged sex abusers are not entitled to orders preventing their prosecutions solely on grounds of the DPP being to blame for delays in bringing such prosecutions.
In such cases of blameworthy prosecution delay, the accused person must show other circumstances to support their claim that their right to a speedy trial has been so prejudiced that the prosecution must be halted, Mr Justice Nicholas Kearns stated in a decision with which the five-judge court yesterday agreed.
However, because of evidence that a 34-month blameworthy prosecutorial delay in a particular case had led to significant increased anxiety for a man charged with three counts of gross indecency of his nephew on dates between 1982 and 1985, the court yesterday upheld a High Court decision to restrain the trial of that man.
The nephew was aged between 13 and 16 years at the time of the alleged offences while the applicant was in his 40s. The nephew made a complaint to gardaí about the alleged abuse in 1998 and the applicant was ultimately arrested and charged in December 2000.
The applicant then took judicial review proceedings alleging his right to a speedy and fair trial had been prejudiced by both the delay of between 13 and 16 years between the alleged offences and the bringing of a formal complaint and the 34-month delay between the making of the complaint and his being charged.
In May 2004, the High Court granted the man's application to halt his trial. The court noted two different approaches in Supreme Court decisions relating to the effect of prosecutorial delay and ruled that, in the case before it, the 34-month period of prosecutorial delay was inadequately explained by the DPP and this blameworthy delay was in itself sufficient to require the court to halt the man's trial.
In his judgment on the challenge to that point by the DPP, Mr Justice Kearns noted the DPP did not contend that prosecutorial delays were to be disregarded and the DPP also accepted the prosecuting authorities had a special obligation to expedite investigations of abuse complaints and any subsequent prosecutions.
The courts, in cases where there has been delay in bringing and prosecuting sex-abuse claims, must engage in an appropriate balancing exercise to decide whether an accused's right to a fair trial was so prejudiced that their trial should be halted, he said.
Where there has been prosecutorial delay, a person seeking to halt their trial must put something more into the balance to outweigh the public interest in having serious charges proceed to trial, the judge said. As part of that balancing exercise, the court should bear in mind that there were other remedies apart from orders halting trials, including ability to give a direction to bring a trial on speedily.
The judge said he was unimpressed by arguments on behalf of the DPP that blameworthy prosecutorial delay should be treated as a mitigating factor at the sentencing stage of a trial. A person who was acquitted of abuse charges would get no benefit from such an approach.
Mr Justice Hugh Geoghegan said he agreed that a balancing exercise must be carried out by the courts when deciding whether a prosecution should be halted or not.
