Court of Appeal: Convicted sexual offender fails to halt trial into historic abuse of children between 1978 and 1993

About this case:

• Citation:
  [2022] IECA 119
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Delivering judgment in the case, the President of the Court of Appeal determined that it would not be appropriate to halt the criminal proceedings in respect of any of the complainants. The court said that the issues canvassed in the present proceedings dealing with prejudice and loss of evidence could be fairly dealt with by the trial judge.

Background

In 2016, the applicant (BK) pleaded guilty to sexual offences relating to ten complainants and was sentenced to 14 years and two months’ imprisonment. One of the complainants, known as JC, was central to the prosecution, having waived his anonymity in the process.

Subsequently, further complainants came forward to gardaí and gave statements that they had been abused by BK as children. On the basis of the new allegations, BK was charged with a further 270 counts of sexual assault on minors. The charges were split across two trials which each involved six complainants in total.

Each of the complainants had made their allegations years after the fact of the offending, which was alleged to have taken place between 1978 and 1993. Each of the complainants made their allegations after 2013, which was the date that BK was originally arrested.

Some of the complainants had been in contact with JC prior to making their formal statements, and some allegations existed in 1987 that were not ever fully investigated by gardaí. Additionally, some of the complainants had disclosed the abuse to family long before making formal statements.

Further, some complainants had not taken opportunities to provide statements to gardaí in 2013 when they were first contacted.

On foot of the delay in charging and prosecuting him for the offences, BK issued judicial review proceedings seeking to halt the criminal trials. It was submitted that there had been substantial prosecutorial and complainant delay which caused him significant prejudice. Disclosures had been made well in advance of the formal complaints to gardaí and earlier investigations were not properly conducted, it was argued.

The applicant also claimed that certain witnesses had passed away which prejudiced him in defending the claims. Further, the applicant relied upon the interactions between the complainants and JC and the general publicity of his previous conviction to say that he would not get a fair trial.

The judicial review was dismissed in the High Court and the applicant appealed to the Court of Appeal.

Court of Appeal

Mr Justice George Birmingham began by noting that the present case was similar to many other cases relating to historic sexual abuse. It was held that a consensus had formed that it was more appropriate to allow a trial judge to deal with matters relating to evidence and prejudice rather than make determinations in judicial reviews.

The court then considered the factors which the applicant claimed deprived him of a fair trial. On the issue of delay, the court noted that the second set of three complainants were not involved in the 1987 investigation by gardaí. It was said that the applicant’s real complaint was that the gardaí had cause for concern in 1987 after a boy’s mother made contact but failed to follow up.

Although a Commission of Investigation had been set up to investigate the circumstances of the non-investigation in 1987, it was difficult to see how this investigation was relevant to the issues in the criminal proceedings. At its height, the claim was that the applicant’s offending would have emerged in 1987 if the gardaí had been more committed, but this was “speculative in the extreme.”

Further, there could be no concern about the Commission of Investigation’s proceedings causing disadvantage to the applicant, as the Terms of Reference specifically require regard to be had to existing proceedings. The court also reasoned that a former judge of considerable experience was leading the Commission.

In respect of the contact between the complainants and JC, it was said that this could occur in many cases involving multiple complainants. In general, the issue of cross-contamination of evidence was a matter to be probed at trial, the court said.

The court also considered the effect of the deaths of individuals since the alleged offending, including doctors, the applicant’s parents and a garda who had some involvement of with the 1987 investigation. The court considered the potential evidence of each of the possible witnesses and held that it was not clear that their evidence would have any real bearing on the outcome of the trials.

The court further considered the issue of pre-trial publicity. It had been argued that the applicant was prejudiced due to the high levels of public interest in the previous proceedings. There had been significant media coverage previously, particularly in Waterford where BK lived.

The court noted that an unusual aspect of the publicity was that the applicant had contributed to the coverage by giving interviews and having conversations with journalists. The court held that the applicant overstated the level of publicity of the previous conviction in Dublin, where less attention would have been paid to the initial conviction. It was certainly open to the applicant to apply to transfer the case to Dublin if he felt that a fair trial could not be attained in Waterford.

Finally, Mr Justice Birmingham considered MS v. DPP [2021] IECA 193, where the Court of Appeal prohibited a criminal trial due to wholly exceptional circumstances. In that case, the cumulative effect of the delay of up to 53 years, the age and poor health of the accused and three earlier sexual abuse trials rendered a further trial unfair.

Applying the MS decision to the present case, the court held that the same concerns did not arise in the present case on foot of the specific reasons advanced by the applicant. The issues raised by the applicant were properly addressed by a trial judge, although the court recognised that there had to be an “end point” to the prosecution of the applicant.

Conclusion

The appeal was dismissed.

BK v. The Director of Public Prosecutions [2022] IECA 119