Supreme Court allows prohibition of sexual abuse prosecution due to unexplained extreme delay alone.

THE SUPREME COURT

215/04

Hardiman J

Fennelly J

McCracken J

Between:

T. S.

Applicant/Appellant

and

The Director of Public Prosecutions

First named Respondent

and

His Honour Harvey Kenny

Second named Respondent

and

District Judge Albert O’Dea

Third named Respondent

Judgment of Mr Justice Fennelly delivered the 22nd day of June, 2005

1. I agree with the order proposed by both Hardiman J and McCracken J. Hardiman J has, nonetheless, and rightly drawn attention to

the difficult jurisprudential task which the Court is required to perform in disposing of the seemingly unending line of cases of delayed

prosecution for sexual abuse. The possible variety of interpretation of the existing jurisprudence is well illustrated by the three

judgments delivered as recently as six months ago in PL v Her Honour Judge Buttimer (unreported 20th December 2004).

2. McCracken J, in his judgment in the present case rejects “the proposition that the passage of time alone would be grounds for the

prohibition of a trial.” I am not persuaded that such a clear proposition can be derived from the case law. Hardiman J explains that his

own judgment in PL was not based on the fact that “some arbitrary number of years had elapsed but because in the circumstances

of that case, and apart from any demonstrated prejudice, a real and serious risk of prejudice arose simply from the length of the

time lapse combined with the absence of other sources of information.”

3. In my own judgment in PL, I interpreted the existing case law as containing a “special jurisprudence” applicable to child sexual

abuse cases, whereby an accused person might be precluded from relying on what McCracken J calls the “first test” because, by

reason of dominance or some other reason (usually psychological inhibition), the delay in complaining could be attributed to the

accused himself. In effect, I believed—and still believe—that this is a sort of exception to the first test.

4. Geoghegan J, however, specifically disagreed with my interpretation of the “special jurisprudence.” He found himself “unable to

agree…… that the case law establishes that in a prosecution for sexual offences prohibition can never be granted on the ground of

delay alone.” He was “of opinion that that [this] is a reserve power to be exercised by a court in a rare but appropriate case in

relation to any criminal prosecution whether sexual or non-sexual where otherwise there would be a real and serious risk of an unfair

trial or where in a more general sense the trial would not be “in due course of law” as for instance where there has been an abuse

of process or significant prosecutorial misbehaviour.”

5. Clearly, this is a matter for further elaboration. On closer reading, there does not appear to me to be any divergence in principle

between the views of Hardiman J and Geoghegan J on the one hand and my own, on the other, regarding the possibility of halting a

prosecution on the ground of extreme delay alone. For present cases, it suffices to say that I agree with the conclusion of McCracken

J that the explanations for the very extreme delay in the present case advanced by the Respondent are insufficient. The

consequence is, however, that the delay is unexplained. Thus the Appellant is entitled to succeed, on the ground of delay alone, in

obtaining an order of prohibition.