Court of Appeal: Injunction granted against prosecution of 88-year-old man in historic sexual abuse case

Killian Flood BL

About this case:

• Citation:
  [2021] IECA 193
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

However, the Court of Appeal determined that the cumulative factors of prosecutorial delay, ill health and the historic nature of the offences required the injunction to be granted. The court also held that the trial judge was incorrect to say that the appellant was out of time to bring his judicial review proceedings.

Background

The appellant, M.S., had previously been tried on three separate occasions in relation to historic sexual offences. In 2003, he was acquitted, while in 2017 and 2019, he was convicted. He received 20 months’ imprisonment in 2017 and four years’ imprisonment in 2019.

The appellant was also accused by other complainants of sexual offences which occurred between 1968 and 1992. In total, 57 complaints were alleged. The complainants gave their interviews to gardaí between 2012 and 2014.

The appellant brought judicial review proceedings seeking to restrain the prosecution of these further complaints. The Director for Public Prosecutions had directed to charge M.S. with the current criminal proceedings in May 2017 but only informed him of that decision in May 2019.

By that time, the appellant’s physical and mental health had deteriorated. He was a very old man and it was claimed that he had difficulty giving instructions. The DPP had intended to inform the appellant of the decision to postpone the current proceedings while the other criminal trials were ongoing. However, due to oversight, no letter was sent until May 2019.

The appellant’s solicitor engaged in correspondence with the DPP seeking to understand the reasons for the delay. The DPP provided a letter in December 2019 outlining some of their reasons. The appellant’s solicitor sought further confirmation and a second letter issued in January 2020 which mirrored the contents of the December 2019 letter.

As such, it was argued that it would be unfair in the circumstances to allow the DPP to prosecute the case. The High Court rejected the application, stating that the appellant was out of time to bring the judicial review. The court held that the grounds for judicial review arose with the December 2019 letter and the appellant failed to bring the application within three months of that letter.

The court also determined that all the cumulative factors in the case did not weigh heavily enough to prevent the prosecution and that matter such as ill health could be dealt with by the trial judge. The appellant appealed the decision.

Court of Appeal

Delivering judgment in the case, Ms Justice Isobel Kennedy began by considering whether the appellant was out of time to bring the judicial review proceedings. The court noted that there was a tension between the decisions in C.C. v. Ireland [2006] 4 IR 1 and Coton v. DPP [2015] IEHC 302 about whether time should run from the service of the indictment. The court stated that if time ran from the service of the indictment, it could derail many trials due to the lateness of service in most cases. However, this issue did not need to be determined in the present case.

The court stated that the appellant’s solicitor was entitled to raise further queries to the DPP’s correspondence in December 2019, particularly regarding the delay in directing a charge for the appellant. Since the appellant was justified to seek further information from the DPP, time only ran from the DPP’s second response in January 2020. As such, the proceedings were brought within time.

The court then considered the substantive issue of granting an injunction. The appellant’s submissions relied on S.H v. DPP [2006] IESC 55, which determined that a prosecution could be prevented where a trial would be unfair or unjust. It was argued that there were “wholly exceptional circumstances” to justify the orders sought in the application.

The court noted that the allegations related to offences which occurred between 29 and 53 years ago. The appellant was 88, in poor health and had been through several trials already. It was held that the appellant had the right to an expeditious trial, particularly given the antiquity of proceedings.

Mr Justice Kennedy held that if the DPP’s intended letter to the appellant had been sent, it would have afforded the appellant the opportunity to consent to having the present offences tried with the other offences. If the appellant had not consented, then there would be no ground for the judicial review. However, since the letter was never sent, the appellant was deprived of that choice.

The court held that DPP was clearly attempting to ensure that the appellant received a fair trial. Further, the court said that, as a matter of principle, there was no bar on prosecuting historic offences or a person in ill health or where there was prosecutorial delay. It was in the public interest for crimes to be tried, the court said. At the same time, the integrity of the justice system demanded that justice was done for accused people too.

The court accepted the High Court’s ruling that the difficulties associated with trying historic cases could be properly addressed by the trial judge. However, the inherent jurisdiction of the court allowed it to halt a prosecution which would be unfair or unjust.

The court held that none of the individual factors identified in the case were sufficient to prevent the prosecution of the offences. However, when taking all the issues together on a cumulative basis, the court was satisfied that this was one of the rare cases which fell into the “wholly exceptional category”. As such, it was held that it would be unjust to put the appellant on trial for the offences.

Conclusion

The court allowed the appeal and granted an injunction restraining the DPP from prosecuting the case further.