Supreme Court allows appeal to prohibit prosecution due to inordinate delay outweighing public interest in sexual offences case.

THE SUPREME COURT

Keane C.J.

McGuinness J.

Hardiman J.

167/01

BETWEEN:

P.M.

APPLICANT/APPELLANT

AND

DISTRICT JUDGE MIRIAM MALONE AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT delivered the 7th day of June , 2002, by Keane C.J.

Introduction

This is one of a number of cases which have come before the High Court and this court in recent years in which the court has

been asked to restrain the prosecution of sexual offences because of the time which has elapsed since the offences were

allegedly committed. This case, however, presents two somewhat unusual features.

In the first place, the defendant in the proceedings (hereafter “the applicant”) was not significantly older than the complainant,

who is his sister, at the time the conduct is said to have begun, nor was he in a position of authority in relation to her. On the

contrary, the applicant was nine years old at the time and the complainant was seven years old. It is not suggested that the

conduct in question continued beyond the period when they were respectively fourteen and twelve years old.

In the second place, the delay in initiating the proceedings was not solely due to the inaction of the complainant: it is not in

dispute that the gardaí were fully aware of the allegations in January 1992 but, for reasons which will appear shortly, did not

charge the applicant with any offence until the 25th May 1999.

The applicant was given leave to apply by way of judicial review for inter alia an order of prohibition restraining the continuance

of the prosecution on the 14th February 2000. A notice of motion claiming that relief having been served, a statement of

opposition was delivered on behalf of the second named respondent. The motion having come on for hearing before Carroll J, in

a written judgment on the 11th May 2001 she declined to grant the relief sought. From that judgment and order, the applicant

has now appealed to this court.

The factual background

The factual background should now be set out in more detail. The applicant is the eldest of five children, having been born on

the 14th January, 1970, the complainant being the second oldest in the family. Late in the year 1991, St. Clare’s Unit in the

Children’s Hospital, Temple Street, was contacted by the family GP. He said that the mother had informed him that she was

concerned that the youngest in the family, J, who was then aged 3, might have been sexually abused by her elder brother, the

applicant.

An assessment was carried out by a clinical psychologist, Anne O’Flaherty, and a senior social worker, Kieran McGrath. Mr.

McGrath reported their findings to Garda Catherine Moran in Malahide Garda Station in writing on the 28th January 1992. He said

that the GP had reported that previous concerns had been expressed about the possibility that the applicant had abused the

complainant sometime in the past but that, at that time, the family would not agree to any further action being taken. As a

result, there had been no follow up.

Mr. McGrath said that the parents were a couple who had clearly a difficult relationship, characterised by frequent

disagreements and some physical violence. The mother told him that, in approximately the year 1987, she and her husband had

been approached by the two younger children - this was before J was born - who told them that the applicant and the

complainant had been “wrapped up in a blanket together”. She said that, thereafter, she became more conscious about the

need to “supervise [the complainant]”. She was concerned that she could not get into the complainant’s bedroom which was

locked and she suspected at the time that the applicant was getting into the bedroom through the window.

The mother went on to give an account of a recent incident involving J, the youngest child, which had led to her expressing her

concerns to the GP and to the present investigation. Following a remark by the child in the presence of her mother and the

complainant, the latter said: “ Don’t tell me [the applicant] is at it again.” The father, for his part, while concerned about the

possibility that something might have happened in the past, was inclined not to attach importance to it: his major concern was

a fear of what might happen to the applicant if he was reported to the gardaí. He was adamant that the applicant had not

abused J.

When the complainant was interviewed during the course of this inquiry, she recounted a history of sexual activity between

herself and the applicant which went on for approximately two to three years while she was in primary school, from when she

was aged about six or seven until she was in approximately 5th class. She said that she had participated willingly in these

activities at the outset, but that the behaviour had become “more sexual” over time, culminating in full intercourse. She said

that the applicant ensured her co-operation by offering her treats, money etc.

The complainant also said that the applicant had shown her from time to time pornographic material which, in turn, had been

shown to him by his uncle and his grandfather. She said that she had no awareness of her younger sister, J, having been

abused by the applicant, but displayed a protective attitude towards her and was clearly reluctant to see her unsupervised in

the applicant’s company.

The complainant made it clear, during these interviews, that she did not wish to make a formal complaint to the gardaí about

having been abused by the applicant. She said that she “hates [the applicant]” for what he had done but did not wish him to

get into trouble and was willing to forgive him because he was a member of her family.

Another sister L, aged 14, also recounted incidents of sexual contact between herself and the applicant over a period of two

years, beginning when she was approximately five or six years old. J, aged three, was also interviewed and a physical

examination carried out. Answers given by her were described in the report as being “highly suggestive” of her having been

sexually abused by the applicant and also, possibly, by a friend of his. The physical examination of the child was normal.

The applicant, in the course of an interview, admitted, reluctantly, that he did have sexual contact with the complainant and

that he now realised that this was wrong. He was extremely worried about ending up in jail and expressed anxiety, when it was

suggested to him that he might need help in this area generally, that he would be castrated. He said that he was “almost sure”

that he did not have any sexual contact with L and was categorical in his denial of any sexual contact with J.

The report concluded by saying that it would be advisable to hold a case conference to discuss the various issues which had

arisen. As already noted, however, no charges were brought at that stage.

In an affidavit sworn in these proceedings, Sergeant Moran, as she has since become, said that both the complainant and L

refused to make statements to her about the alleged sexual abuse and that the parents were reluctant to have the allegations

concerning J investigated any further, once they were aware that the physical examination of her had revealed nothing

abnormal. They did not believe the alleged disclosures made by her during the course of the investigation at St. Clare’s Unit and

said that she had been “coerced” into allegations that the applicant had interfered with her. Sergeant Moran said that, in the

absence of a complaint being forthcoming, it was “effectively impossible” to prosecute the applicant.

Such a complaint was, however, made by the complainant on April 20th 1998. In the statement by her in the book of

documents served in these proceedings, she gives an account of sexual activity between herself and the applicant, initiated by

the applicant saying he wanted to play “mammies and daddies”. This began when she was seven years old and he was nine

years old and eventually took the form of complete sexual intercourse. One day, however, when she and the applicant were in

her room and the door was locked, her mother started banging on the door and shouting “let me in”. The applicant got out the

bedroom window and her mother shouted to her “Don’t let me catch ye doing anything like that again”.

In an affidavit sworn by her in these proceedings, the complainant said that throughout the period of the sexual activity

between herself and the applicant, the latter “cajoled, bribed and bullied me into silence.” She said that the activity ceased

from the time when her mother tried to gain access to the bedroom. Her affidavit went on

“In October 1991, my brother’s abuse came to light in the context of a remark made by my youngest sister, J, then

aged 3½ years, about raw sausages and my brother’s penis. I was worried about my sister and expressed that concern

to my mother. As a consequence, my mother reported the matter to the family doctor and, it appears, made a

statement to An Garda Siochana. As a consequence the entire family was sent for assessment to St. Clare’s Unit....”

Having referred to the interview that took place in the unit and to her refusal to make a statement, the complainant added

“At the time I was living at home and I knew that neither of my parents wanted me to complain my brother to the

gardaí. The entire episode put an enormous strain upon the family and each of its members.”

The complainant said that she moved out of the family home in 1994 and went to live with her boyfriend. Her affidavit continues

“In December 1994 matters came to a head in circumstances where it was reported to me that J, then aged 7 years of

age, had stated to relatives that she had been raped. After an argument with my mother, I slowly came to the

conclusion that she was either unwilling or incapable of protecting my little sister from my brother’s advances.

In order to protect my sister, I decided to report the matter to An Garda Siochana. On April 20th 1998 I made a

statement to Garda Patricia Maher at Tallaght Garda Station, Co. Dublin. On June 27th 1999, I made a further statement

to Detective Garda Kevin Fields at Swords Garda Station, Co. Dublin.”

The complainant in her original statement said that she had “gone to counselling” before going to the gardaí. In her second

statement, she said

“The reason why I delayed in pressing charges against [the applicant] is mainly because I was still living at home and I

did not know what to do. I had no support from my family, I knew my mother did not want me to press charges and

after our visit to St. Clare’s Unit my mother had a nervous breakdown. I did not want to put more pressure on my

mother at that time. When I moved out it had always been on my mind. I had been worried about J, whether [the

applicant] has tried to interfere with her. I would never be able to forgive myself if he ever did anything to J, or any

other child like what he did to me. If he ever did I would feel responsible for not doing something about it. It has been a

nightmare for me and the nightmare is nearly over.”

The complainant said in her affidavit that since she made her first statement, she had been “effectively ostracised” by the

other members of the family.

Following the making of the complaint to the gardaí, the applicant was interviewed by them. He made a written statement to

the gardaí on the 13th October 1998, in which he admitted to having had regular sexual contact, including full intercourse, with

the complainant. He said that this had been prompted on his part by pornographic photographs which he had come across in his

parents’ bedroom. He said that the sexual relationship with the complainant continued until she was about 19 years of age and

that, since his sister had arrived at the age of 16 he, the applicant, knew that this behaviour was wrong.

Although this statement was made to Detective Sergeant Field on the 13th October 1998, the file was not sent to the second

named respondent for directions until the 22nd February 1999. This, the Detective Sergeant averred, was because of his

involvement in a number of other serious cases. Having received directions from the second named respondent on the 14th April

1999, he arrested the applicant on the 25th May 1999. The applicant was remanded on bail until the 1st June 1999, on which

date a number of further charges were preferred. Nine of the charges related to incest committed by him between the 1st

January, 1982, and the 1st January, 1991, and five to indecent assaults between 2nd January 1982 and the 1st January, 1987.

He was returned for trial to the Dublin Circuit Court on the 1st December 1999, on these charges.

At the hearing in the High Court, the court was informed that the second named respondent was not proceeding with any of

the charges relating to the period before the 15th January 1984, when the applicant reached the age of 14 years, because of

the irrebuttable presumption, then part of our law, that a male under that age was incapable of sexual intercourse. The court

was also informed that, in view of the statement in the complainant’s affidavit that the sexual activity in question had ceased in

1985, the second named respondent was not proceeding with the charges from that time up to 1987.

In an affidavit sworn in these proceedings, Mr. Robert Foley, a psychologist, said that he had met and interviewed the

complainant on April 11th 2000. He said that, in his opinion, the complainant’s account as to why she did not disclose the sexual

activity to her family or other adults was consistent with that of a child’s attempts to adapt to a situation where she felt she

had no control, would not be listened to and might well be blamed and where the perpetrator was as far as she was concerned,

clearly a favourite child. He said that when she was afforded what he described as a “safe and invitational place”, i.e., St.

Clare’s Unit, she disclosed the abuse in detail. He went on:

“However, she did not take the further step of making a statement to An Garda Siochana since she clearly anticipated

the effect that would have on her family and her position in her family. In the event, it appears she accurately

anticipated her family’s reaction to her making a statement to the gardaí. By the time she did so, she was no longer

living in the family home, was in a stable relationship and had emotional support. Her reasons for making her statement

to An Garda Siochana were primarily influenced by her pressing desire to save her younger sister from what she had

suffered and not in any way to maliciously get back at her brother. The circumstances recounted to me by [the

complainant] pertaining to the period of the abuse and the subsequent year when she lived in the family home are

consistent with a dysfunctional relationship between mother and daughter. That situation rendered [the complainant]

psychologically unable to face the consequences of disclosure. In view of these circumstances, I conclude that the delay

in reporting these alleged experiences of child sexual abuse was reasonable.”

In a report exhibited with his affidavit, Mr. Foley says that

“Given the time constraints in this case only one appointment was possible, I did not have an opportunity to interview

any of her family members. Ideally I would like to have an opportunity to spend further time with [the complainant] and

have an opportunity me (sic) meet with a family member.”

In the course of the report, Mr. Foley gives the following account of the course of events subsequent to 1994, presumably

based on his understanding of what the complainant had told him in the course of this interview:

“[The complainant] reports that she met her current boyfriend in and around 1994. She moved out of the family home

to live with him in a mobile home in Brittas. Sometime in December 1994, during an extended family celebration it was

reported to her that J, aged 7, had reported to relatives that she had been raped. When [the mother] heard what J had

said she immediately blamed [the complainant] for causing trouble when in point of fact [the complainant] had said

nothing and it had not even been reported to her. [The complainant] reports that she was so incensed by her mother’s

reaction that a row ensued, her mother stormed off having accused [the complainant] of causing all the trouble with

[the applicant]. It was at that point that [the complainant] came to the realisation that her mother was so defensive of

[the applicant] that she was not going to be able to protect J and consequently she decided to make a statement to the

police regardless of the consequences. She recalls going with her boyfriend to the garda station in Tallaght where she

made a statement. As a consequence of making that statement she reports that she has been ostracised by her family

and has not seen any of them in the last 4 - 5 years.”

It must be pointed out at this stage that it is extremely difficult to reconcile this account of events in the psychologist’s report

with what the complainant stated on oath in her affidavit in these proceedings. According to that affidavit, a period of

approximately three years and eight months elapsed from the “rape” allegation episode in December 1994 until the making by

her of her complaint to the gardaí. The psychologist appears to be under the impression in his report that it was “at that point”,

i.e., of the rape allegation incident in December 1994, that the complainant reported the alleged abuse to the gardaí. Moreover,

in her affidavit the complainant says that, since making her first statement, i.e., on April 20th 1998, she had been ostracised by

the other members of the family. The affidavit having been sworn on the 14th July 2000, the period in question would have

been two years and three months. The psychologist's report refers to her having been ostracised by her family and not having

seen any of them “in the last four to five years” as a consequence of making the statement.

Mr. Foley was cross-examined at the High Court hearing, but the cross-examination was confined to suggested deficiencies in

his assessment of the complainant, particularly in the light of his not having interviewed the siblings and parents.

The High Court Judgment

In her judgment, the learned trial judge, having summarised the facts and the legal principles which she considered applicable,

dealt first with the question of whether there had been what she described as “culpable delay” by the State. She found that

there was not, since there was no reality in the suggestion that a prosecution could have been initiated in 1991/1992 in the

absence of a complaint. She was further satisfied that there was no culpable delay on the part of the State from the time the

complaint was actually made on the 20th April 1998 to the arrest of the applicant on the 25th May 1999.

The trial judge said that, in the absence of any such culpable delay, the next issue was whether there was any prejudice to the

applicant, by reason of the delay, which would entitle him to have the trial stopped. She said there was no affidavit sworn by

the applicant alleging prejudice by reason of the delay and no statement by him that he could not reasonably recollect the

circumstances.

The trial judge went on to refer to decisions of this court in which dominance by the alleged perpetrator over the complainant

was held to have been a factor. Having noted that it did not arise in the present case, she then went on to say that dominance

was not an essential factor: all factors had to be taken into account. Having referred to the evidence of the psychologist and

to the fact that there was no evidence to the contrary, she summed up her view as follows:

“Accepting [the psychologist’s] opinion, it is my view that given the circumstances of this case, in particular the

circumstances within the family including the bad relationship with her mother and the effect of the alleged abuse on the

complainant, there is a reasonable explanation for the delay.”

The trial judge finally considered whether the trial should not proceed because there would be a real and serious risk of an

unfair trial. She rejected the submission made to her that, if the proceeding had been brought at the appropriate time, and not

when he was a mature adult, his case would have been viewed more sympathetically by a jury, pointing out that it had not

been suggested that he should have been prosecuted any time earlier than 1992, at which stage he was already aged 22.

The trial judge concluded:

“The fact that a young person commits a crime and delay occurs does not of itself per se confer immunity from

prosecution. If the delay does not occur through any fault of the State and is explicable and reasonable from the point

of view of the alleged victim and if the accused’s ability to defend himself is not so impaired that [there] would be a real

and serious risk of an unfair trial, then the trial should go ahead. In this case I find no reason why the trial should be

prohibited.”

Submissions of the parties

On behalf of the applicant, Mr. Hartnett SC submitted that the delay of between fourteen and seventeen years from the dates

of the offences to the date of the charges was excessive and unconscionable. There had been a delay of thirteen months

between the complainant’s statement to the gardaí and the applicant being charged. A further period of twenty one months

then elapsed before the applicant was informed of the charges with which it was intended to proceed. There was nothing to

prevent the gardaí from bringing charges in January 1992, at which stage Garda Moran was aware of the complaints being made

by the complainant and of admissions alleged to have been made by the applicant. It would have been open to the prosecution

at that stage to obtain the attendance of the complainant at the taking of depositions in the District Court by summons, she

then being aged 19.

He further submitted that there was no evidence in this case, unlike other cases, that the complainant was psychologically

inhibited from making a complaint at any time from 1992 onwards. She was at that stage prepared to complain of the alleged

conduct of the applicant, not merely to her parents, but to the psychologist and the social worker. The fact that she refused

to co-operate in a prosecution was due, not to any psychological inhibition which was the result of the offending conduct, but

to her considered decision as an adult not to make a formal complaint to the gardaí because of what she anticipated might be

the consequences within the family itself. He submitted that the psychologist’s report did not point to any other conclusion and,

in any event, was seriously flawed by his apparent misunderstanding of the actual sequence of events so far as the making of a

complaint was concerned.

Mr. Hartnett submitted that it followed that the applicant had not been afforded the expeditious trial to which he was entitled

as a matter of constitutional right where there were no circumstances on which the prosecution could rely as justifying in law

that failure on the part of the State. There was no question of any domination, either actual or to be inferred from the

relationship between the applicant and the complainant, which rendered explicable the delay of the complainant in making a

complaint to the gardaí. There was a further element of significant and culpable prosecutorial delay for which no sufficient

reason had been advanced. In these circumstances, he submitted that the trial should be stayed even in the absence of

specific prejudice, citing in support the decisions of this court in B -v- DPP [1997] 3IR 140, PC -v- DPP [1999] 2IR 25 and JL -v-

DPP [2000] 3IR 123.

Mr. Hartnett further submitted that where, as here, there was significant and culpable prosecutorial delay, the age of the

alleged offender was a special circumstance which had to be taken into account in deciding whether the trial should proceed or

not. The trial judge had erred in law in failing to give sufficient weight to that factor in the present case. He cited in support

the decision of the High Court (Geoghegan J) in PP -v- DPP [2000] IR 403 and of this court in BF -v- DPP [2001] IR 656.

Mr. Hartnett further submitted that, in addition to the prejudice which must be presumed to arise in a case where there had

been a delay of some fourteen to seventeen years in proceeding with the charges, the applicant would suffer specific prejudice

since he would now be tried by a jury as an adult for crimes allegedly committed by him when he was a child.

On behalf of the second named respondent, Mr. Anthony Collins submitted that the onus was clearly on the applicant to

establish that there was a real risk that, by reason of the delay, he could not obtain a fair trial. He said that the trial judge was

entitled to conclude that no such risk had been established. It was clear, as she had found, that if the prosecution had been

initiated in 1992, he would then have been an adult and that, accordingly, he was in no different position so far as facing the

charges than he was now.

Mr. Collins further submitted that the trial judge was entitled to rely on the uncontradicted evidence of the psychologist and

the complainant herself as affording sufficient explanation for the delay in this case. He said that the psychologist had not been

questioned during cross-examination as to discrepancies between his report and the complainant’s affidavit.

Mr. Collins submitted that the High Court had correctly applied the test laid down by this court in PC -v- DPP and was entitled to

conclude that the applicant had not demonstrated the existence of a real and serious risk of an unfair trial in all the

circumstances.

As to prosecutorial delay, Mr. Collins submitted that the trial judge was correct in concluding that it would have been entirely

unrealistic to launch a prosecution in 1992 without the complainant’s evidence. The alleged prosecutorial delay subsequent to

the laying of the charges was not so significant as to warrant the staying of the trial and had clearly not resulted in any

prejudice to the applicant.

The applicable law

The legal principles applicable in cases of this nature have been the subject of many decisions in the High Court and this court

in recent years. However, the application of those principles to the present case requires careful consideration, having regard

to the two unusual features which I mentioned at the outset of this judgment.

As the authorities point out, the right of an accused person to a reasonably expeditious trial has been recognised as an

essential feature of the Anglo-American system of criminal justice for many centuries. Since the decision of Gannon J at first

instance in The State (Healy) -v- Donohue [1976] IR 325, it has been recognised as an essential feature of the trial “in due

course of law” guaranteed by Article 38.1 of the Constitution, his statement of the law to that effect being upheld by this court

in The State (O’Connell) -v- Fawsitt [1986] IR 362.

It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably

expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is

sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where

they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty

in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.

That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does

not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the

discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not

contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive

prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend

himself and hence fatally compromise the fairness of the trial. That, however, may not be the only consequence for the

accused of significant and culpable delay to which he has not contributed.

The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where

it does arise, is capable of remedy through the machinery of bail and habeas corpus. The second major consequence is the

anxiety and concern of the accused resulting from a significant delay in his being brought to trial.

There are thus three interests of defendants which the right to a speedy trial is intended to protect , the third being the

possibility that the defence will be impaired. These were identified by Powell J in his opinion in the United States Supreme Court

decision of Barker -v- Wingo ([1972] 407 US 514) in a passage which was approved of in this court in Director of Public

Prosecutions -v- Byrne [1994] 2IR 237, having previously been endorsed by the Judicial Committee of the Privy Council in Bell -

v- Director of Public Prosecutions [1985] AC 937 and by Murphy J in the State (O’Connell) -v- Fawsitt [1986] IR 362.

In this case, the greater part of the delay of which the applicant complains occurred before he was charged with any offence.

Undoubtedly, there is a distinction between the anxiety and concern of an accused person after he has been charged and

before he has been charged. If the accused’s right to a reasonably expeditious trial is violated by culpable delay which is so

significant as, objectively considered, to cause him anxiety and concern, it would follow that that would be a ground for

prohibiting his further trial where the delay occurred after he had been charged.

As to pre-charge delay, it is, of course, the case that prior to the charge the defendant will not be the subject of a public

accusation. In Mills -v- The Queen [1986] 29 DLR, a decision of the Canadian Supreme Court, Lamer J, while acknowledging that

the right of the accused to be tried within a reasonable time under s.11(b) of the Canadian Charter of Rights and Freedoms

extended to protection against overlong subjection to stress and anxiety, considered that the reasonable time ran only from the

moment a person was charged. Pre-charge delay, in his opinion, would in no way impair the interests with which s.11(b) was

concerned. So far as post-charge delay was concerned he said

“Additionally under s.11(b), the security of the person is to be safeguarded as jealously as the liberty of the individual. In

this context, the concept of security of the person is not restricted to physical integrity; rather, it encompasses

protection against ‘over long subjection to the vexations and vicissitudes of a pending criminal accusation’. These include

stigmatisation of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible

disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. These forms of

prejudice cannot be disregarded nor minimised when assessing the reasonableness of delay.”

I shall return at a later stage to the question of whether the pre-charge delay should be taken into account and, if so, to what

extent. I should, however, at this stage say something more on the question as to whether the court, in cases where

significant culpable delay has occurred, is solely concerned with the degree to which the delay may impair the ability of the

accused to defend himself.

In DPP -v- Byrne, Finlay CJ, having cited the passage to which I have referred from Barker -v- Wingo went on

“I am driven to the further conclusion that, of necessity, instances may occur in which the delay between the date of

the alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the

necessity for a court to protect the constitutional right of the accused by preventing the trial, even where it could not

be established either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability

that the accused’s capacity to defend himself would be impaired. This must lead, of course, to a conclusion that, on an

application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or

presumptive prejudice may not conclude the issues which have to be determined.”

The learned Chief Justice went on to point out that delay indicative of “an improper motive or gross carelessness on the part of

the prosecuting authorities” was identifiable, as was delay which caused, or was likely to cause, a significant or serious

impairment of an accused person’s capacity to defend himself. Where those factors were absent, it was more difficult to

determine whether the delay under consideration is of such a nature as to constitute a violation of the accused’s constitutional

right to a reasonably expeditious trial necessitating the prohibition of the trial.

It should be observed that, while Finlay CJ was in a minority as to the result in that case, his statement of principle was

expressly approved of by Blayney J, speaking for the majority. He said:

“If in the present case I had concluded that there had been a breach of the respondent’s right to a trial with reasonable

expedition, I would agree with the view expressed by the Chief Justice in the present case that such a conclusion could

be reached even though the circumstances were not such as to establish any actual or presumptive prejudice to the

respondent in his defence to the prosecution.”

There undoubtedly exists a category of cases, to which the present was found in the High Court to belong, arising out of

contacts of a sexual nature with young children, in which special factors may arise which would justify the court in disregarding

the delay, however inordinate, and allowing the trial to proceed. The law on this topic has been considered at length and in

detail in a number of recent decisions of this court. I would, in this context, refer to a passage in the judgment which I gave in

PC -v- Director of Public Prosecutions [1999] 2IR 25 at p.67:

“The approach that must be adopted by a court asked to prohibit the trial of a person charged with such offences was

dealt with comprehensively by Denham J, speaking for this court in B -v- Director of Public Prosecutions [1997] 3IR 140

and has been considered by her again today. It is unnecessary to traverse that ground again in any detail. Clearly, the

fact that the offence charged is of a sexual nature is not of itself a factor which would justify the court in disregarding

the delay, however inordinate, and allowing the trial to proceed. Moreover, even in cases of unlawful carnal knowledge

or sexual assault where the complainant is a girl under the age of consent, it is to be borne in mind that the alleged

perpetrator may himself be a child. There are cases, however, of which this is one, where the disparity in age between

the complainant and the person accused is such that the possibility arises that the failure to report the offence is

explicable, having regard to the reluctance of young children to accuse adults of improper behaviour and feelings of guilt

and shame experienced by the child because of his or her participation, albeit unwillingly, in what he or she sees as

wrongdoing. In addition, of course, in individual cases, there may be threats, actual or implied, of punishment if the

alleged offences are reported.”

“The delay may also be more readily explicable in cases, where, not merely is the person concerned significantly older

than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her e.g., as

parent, stepparent, teacher or religious. In such cases, dominion by the alleged perpetrator over the child and a degree

of trust on the part of the child may be more readily inferred.”

I went on to emphasise that it was not simply the nature of the offence which discharged the onus resting on the prosecution

to explain the delay: all the circumstances of the particular case had to be considered.

None of the factors referred to in that passage was present in this case. There was no significant disparity in age between the

complainant and the applicant and no question of dominion by him over her rendering explicable the delay arose. Moreover, far

from the complainant being inhibited by the factors referred to in PC -v- DPP, she reported the alleged conduct of the applicant

in full to a psychologist and social worker in 1991.

It is, of course, the case that even though actual dominion by the accused over the complainant may have come to an end, its

consequences may persist, thus rendering delay on the part of the complainant explicable. A notable example is PC, where the

alleged victim complained to her headmistress, the father of one of her schoolmates who was a Garda Sergeant and her

parents. In that case, the uncontested evidence of the psychologist was that the refusal of the persons concerned to take any

action following her complaints resulted in the “repression”, in psychoanalytical terms, of the complainant’s memory of the

incidents concerned. It was not until she received professional counselling some years later that she was psychologically

capable of formally complaining to the gardaí.

In his judgment in JL -v- DPP, Hardiman J has pointed out that even the concept of “repression” has been the subject of acute

controversy in the psychiatric and allied professions on both sides of the Atlantic. In the present case, it is sufficient to say

that, on the undisputed evidence, it does not arise in any way. Mr. Foley nowhere refers to the concept in his affidavit or in his

report: he contents himself with a conclusion that the complainant’s refusal to make a formal complaint to the gardaí in 1991/2

was “reasonable”. That, in turn, is based on the complainant’s belief that to make a complaint would cause difficulties within the

family.

It is clear, that if that was the ground on which complainant declined to make a formal complaint to the gardaí in 1992, it would

not bring the case within the exceptional category where the court would be entitled to regard the delay as, not merely

explicable, but referable to the accused’s own conduct. In this context, a passage in the judgment of Denham J, speaking for

this court in B -v- Director of Public Prosecutions, is illuminating.

In that case, the three applicants had complained that they had been systematically raped and indecently assaulted by their

father over a period of more than twenty years. The complaints were not made until some thirty years had elapsed from the

date on which the conduct alleged against the accused were said to have begun. That, it was sworn by the complainants, was

because of threats and intimidation used by the accused. The complainants also deposed that they felt unable to make any

complaint during their mother’s lifetime. Denham J observed:

“The reason for the delay in this case is the dominion exercised by the applicant over the three complainants. Evidence

of that dominion was accepted by the learned trial judge. On reviewing the evidence before that court, which was on

affidavit only, it is clear that such dominion existed. It is also quite clear that the dominion existed until the

complainant’s mother died. Until her death, the complainant’s were unable to approach the authorities. It was not a

question of the sole reason for the delay being the complainants deciding to postpone the making of the

complaint until their mother’s death, a compassionate and understandable reason, a factor for consideration,

but .... not a sound sole reason to constitutionally delay the trial. This explicit reason was not the only reason for

the daughters’ delay. The daughters were psychologically incapable of approaching the authorities and making the

complaint until after 1991. They inhabited a unique world fashioned by the applicant’s actions, which acts continue to

affect them to this day.”

[Emphasis added]

The contrast with the admitted or proved facts in this case is clear. Here, there was no question of dominion at any stage, still

less of its consequences persisting until the year 1998. On the contrary, the sole ground advanced for deferring the complaint

until 1998 was the complainant’s concern that it might cause problems within the family. That is not an appropriate ground for

denying the applicant his right to a reasonably expeditious trial.

I now return to the question as to whether the court, in considering whether the accused’s right to a reasonably expeditious

trial has been violated, is entitled to take into account, not merely the period which has elapsed from the time at which he is

charged with the offence to the time at which the court is asked to intervene, but also the period from the commission of the

offence to the charging of the accused.

I have already referred to the opinion of Lamer J in Mills -v- The Queen to the effect that such a delay should not be taken into

account. The judgment of the High Court (Gannon J) in O’Flynn -v- Clifford and Others [1988] 1IR 740 also requires careful

consideration.

In that case, each of the applicants was, in February 1988, charged with the commission of an offence in August 1986. When

the matters first came before the respondent district justice, he expressed the opinion that the delay was unreasonable and

inexcusable and he rejected as unsatisfactory reasons which were offered for the delay. He was not, however, given any

assistance as to what effect, if any, the delay had had or could have on the trial of the accused, should they be returned for

trial. He accordingly proceeded with the preliminary examination then required by statute and in due course returned the

applicants for trial. On an application for inter alia orders by way of judicial review prohibiting the trial, no evidence was

adduced that the delay which had taken place might reasonably have had the effect of depriving them of a fair trial.

In the course of his judgment, Gannon J said

“It is not the fact of delay but rather the effect of delay which is a primary factor, the test being whether or not the

accused would have a fair trial.”

In the light of the subsequent decision of this court in DPP -v- Byrne, to which I have already referred, it is now clear that delay

of itself, even where neither actual nor presumptive prejudice to the accused is demonstrated, may be a ground for restraining

the continuance of the trial.

In O’Flynn, the complaint of the applicants was confined to the delay preceding the preferral of the charges against them. The

learned High Court judge was of the view that there was no evidence upon which the District Court in that case could have

concluded that the period of delay was such as might be expected to prejudice the chances of either of the applicants

obtaining a fair trial. On that ground, accordingly, he was satisfied that the applicants were not entitled to the reliefs sought.

As to whether the court could take into account the pre-charge delay, Gannon J had this to say:

“ .... the supposed existence of unexpressed suspicion of criminality in the mind of another in relation to a person cannot

in law or in reason confer any rights cognisable by the courts upon the person to whom the suspicions relate. A person

who is a mere suspect (and therefore presumed innocent) has no legal right to have a charge made against him nor to

have some legal process diligently or expeditiously pursued by arrest or by summons, to bring him before a court. The

public interest and good sense require that every crime be properly investigated and that the offender be expeditiously

brought to justice. But the public interest also requires diligence and conscientious care in the investigation of crime,

and the assembling and presentation of cogent evidence in support of a prosecution. It is no part of the function of the

courts to participate either in the investigation of criminal offences or in the supervisory direction of those engaged in

that work. The courts must remain detached and independent in relation to all matters antecedent to the laying of a

charge against a person of a criminal offence.”

I would respectfully agree with the view of the learned High Court Judge in that case that what he describes as “the supposed

existence of unexpressed suspicion of criminality” could not confer rights cognisable by the law on the suspect. I think it is also

clear that, generally speaking, it is not the function of the courts to participate in the investigation of criminal offences.

We are here concerned, however, with a case in which, not merely was there suspicion of criminality on the part of the

applicant: there was an express complaint by the alleged victim to the psychologist and social worker who, in turn, reported the

matter to the gardaí. Undoubtedly, if the complainant had at that stage made a formal complaint to the gardaí, the applicant

would have been interviewed and, to that extent, it can be said that the investigation was not at that point complete.

However, that is not to say that the court, in the present case, is entitled to leave entirely out of account the delay that

subsequently ensued in charging the applicant in determining whether his constitutional right to an expeditious trial had been

violated and I do not think that the passage I have cited from the judgment in O’Flynn would necessarily support such a

proposition.

It is true that, as pointed out by Lamar J in Mills -v- The Queen, prior to the charge the individual will not normally be subjected

to restraint nor will he or she stand accused before the community of committing a crime. But, as is clear from the same

opinion, those are not the only factors which may give rise to anxiety and concern. There may be stigmatisation of the

accused, loss of privacy, disruption of family, social life and work, legal costs and uncertainty as to the future. In the present

case, it is reasonable to infer that the applicant was subjected to anxiety and concern as from the time the investigation began

in 1991.

I am accordingly, satisfied that, in determining whether the concern and anxiety caused to an accused person is such as to

justify the prohibition of his trial on the ground that his constitutional right to a reasonably expeditious trial has been violated,

the court, depending entirely on the circumstances of the particular case, may be entitled to take into account, not merely

delay subsequent to his being charged and brought to trial, but also delay prior to the formal charge. It is to be remembered

that, in upholding the applicant’s rights in such a case, the court is not merely vindicating and protecting the rights of all

persons coming before the courts to the dispatch of criminal proceedings against them with reasonable expedition: it is also

upholding the general public interest in the speedy prosecution of crime. While I do not propose to refer to them in any detail,

since they were not opened to us in the course of the oral arguments in this case, it is of interest that the courts in New

Zealand have taken a similar view so far as pre-charge delay is concerned: (See Watson -v- Clarke [1990] 1 NZLR 715 and

Hughes -v- The Police [1995] 3 NZLR 443).

It remains to be noted that, until the enactment of the Criminal Law (Rape) Act 1990, there had been a conclusive presumption

at common law that a boy under the age of fourteen was incapable of committing a rape or any other offence involving vaginal

or anal intercourse. Section 6, however, of the 1990 Act provided that

“Any rule of law by virtue of which a male person is treated by reason of his age as being physically incapable of

committing an offence of a sexual nature is hereby abolished.”

Conclusions.

An argument that the complainant might have caused charges to be instituted even earlier than the 1991/92 period was not

seriously pressed. The delay, however, from 28th January 1992, when Mr. McGrath’s report was transmitted to the gardaí to

the 25th May 1999 when the applicant was arrested was, by any standards, inordinate and demanded an explanation. Even at

that stage a further unnecessary delay occurred before the applicant was ultimately informed on the 22nd February 2000, the

day of the hearing in the High Court, that he was now being prosecuted solely in respect of the charges relating to the period

beginning on 15th January 1984 and ending on the 2nd January 1986.

The second named respondent must be assumed to have known of the statutory presumption in favour of the applicant in

respect of sexual activity prior to his 14th birthday in May 1999. No explanation was given as to why those charges were not

dropped until the proceedings came on for hearing in the High Court. Moreover, if the complaint had been properly investigated

in the period leading up to the applicant’s arrest on the 25th May 1999, the second named respondent would have been aware

of the bewildering contradiction between the applicant’s alleged statement that the intercourse with the complainant continued

until she was aged nineteen and her own statement that it stopped, at the latest, when she was twelve. The period of

inordinate delay which, accordingly, requires explanation was from 28th January 1992 to 22nd February 2000.

It is clear that, in the light of the legal principles already set out, this case does not fall within the special category of cases of

sexual abuse where the delay is explicable because of the accused’s own conduct. In this context, no blame can be attached

to Sergeant Moran for not seeking directions from the second named respondent at that time. In the light of the professed

unwillingness of the complainant to press the matter at that stage, because of the effect it might have on the family, that was

a perfectly sensible decision on her part. The position of the complainant is, however, entirely different. She made a conscious

decision, as an adult, not to proceed with the complaint for reasons which seemed good to her at the time but which were not

the result of any dominion exercised over her by the applicant. It cannot be too strongly emphasised that the mere fact that

the case involves an allegation of sexual activity with a child does not absolve the court from its obligation to inquire into the

actual cause of the delay in the particular case.

There remains the question as to whether the unarguable violation of the constitutional right of the applicant to a reasonably

expeditious trial was of such a nature as to necessitate the prohibition of a trial at this stage. I am satisfied that this is not a

case in which it has been demonstrated that the capacity of the accused to defend himself at such a trial would necessarily be

impaired by the delay that has occurred. In particular, I agree with the view of the learned trial judge that the fact that, if the

trial now proceeded, he would be dealt with as an adult is not a material factor. That would also have been the case if the

prosecution had been instituted at the appropriate time, i.e., in 1992. Nor can it be said that, in the circumstances of this case,

it is to be automatically presumed that, even in the absence of specific prejudice to him, his capacity to defend himself would

necessarily have been impaired.

The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of

the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this

stage. If this were a case in which it could be said that his ability to defend himself had been impaired and, as a result, there

was a real and substantial risk of an unfair trial then, as pointed out by Denham J in D -v- Director of Public Prosecutions [1994]

1 ILRM 435, the applicant’s right to a fair trial would necessarily outweigh the community’s right to prosecute. Where, as here,

the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the

applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be

protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public

interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be

concerned with the nature of the offence and the extent of the delay.

It is hardly necessary at this stage to stress the gravity of an offence which consists of the sexual exploitation by an adult of

children. The unusual features of the present case have, however, already been emphasised. It began as a form of sexual

experimentation between two children under the age of ten and continued for a relatively short time after the applicant had

reached the stage at which, in the eyes of the law, his actions attracted the same degree of criminal responsibility as adults.

There is no indication in the affidavit sworn by the complainant in this case, or in the psychologist’s report, that the alleged

activities had any significant long term consequences for her in psychological terms. The courts have become familiar in other

cases with the extremely serious psychological effects that can flow from an innocent child being prematurely introduced to the

world of sexual activity by a callous and exploitative adult. It can irremediably blight the sexual development of young people

with almost incalculable consequences for their general happiness and well being.

No such allegations are made in the present case. The complainant has made it clear that the only reason she made a complaint

in 1992, and again in 1998, was because of her concern that the applicant might have been abusing her younger sister.

Although the relevant facts were fully reported to the gardaí in 1992, no prosecution was instituted in respect of the alleged

abuse of J and, it has not at any stage been a relevant factor in determining whether the continuance of the prosecution of the

applicant in respect of his alleged activities with the complainant is justified. I am satisfied that, in this case, the nature of the

offences with which the applicant is now charged coupled with the inordinate and wholly unjustifiable delay in bringing them to

trial renders this a case in which the constitutional right of the applicant to a reasonably expeditious trial outweighs any

conceivable public interest there might be in the prosecution of the alleged offences.

I would allow the appeal and substitute for the order of the High Court an order by way of judicial review prohibiting the second

named respondent from further proceeding with the prosecution of the remaining charges in this case.