Former surgeon’s attempt to restrain indecent assault prosecutions fails

About this case:

• Judgment:
  External link

The alleged offences were perpetrated primarily against teenage boys who had been admitted to hospital for relatively minor injuries. The alleged offences occurred either when the surgeon, identified as M.S., was carrying out his ward rounds, or in his private consulting rooms.

He had previously been acquitted on 11 similar counts in 2003. The current case concerned charges based on complaints from 22 separate complainants, which were served on him in 2012.

M.S. sought to have the prosecution of these offences restrained on three grounds, first, delay in the bringing of the charges; second, prejudicial publicity; and, third, the joiner of additional charges on the indictment.

Delivering the judgment, Mr Justice Gerard Hogan considered each of these in turn.

In relation to the delay, the Judge acknowledged that some of the complaints occurred more than fifty years ago, possible constituting the longest interval between an incident and trial ever seen in this jurisdiction.

He also acknowledged that the Irish courts have struggled to balance the rights of the accused and the effective prosecution of child sexual abuse complaints since the first complaints emerged in the mid-1990s.

He noted that Article 38.1 of the Constitution presupposes that any trial will be conducted in accordance with civilised standards as befits a democratic State committed to the rule of law, and aims to reduce the risk of miscarriages of justice.

The Judge acknowledged that miscarriages of justice may become more likely in cases of lengthy delays, with SB v. Director of Public Prosecutions IESC 67 showing that the situation for an accused in such an instance can be regarded as “perilous”.

However, citing Re Article 26 and the Criminal Law (Jurisdiction) Bill 1975 I.R. 129, he also noted that Article 38.1 requires a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society.

In the case of historic sexual abuse, the crimes include “an open attack on the ‘person’ of the child within the meaning of Article 40.3.2 of the Constitution”, as found in FH v. Staunton IEHC 53.

The balance struck must therefore ensure that the right of victims to the effective protection of the person within the meaning of Article 40.3.2 is adequately protected.

It was observed that prior to S.H. v. Director of Public Prosecutions IESC 55, 3 I.R. 575, lengthy delay had been cited as a reason to restrain trials. However, since that seminal decision, a new approach had developed in which two key questions are considered: First, is the lapse of time simply too great? Second, can the applicant nonetheless demonstrate potential prejudice by reason of the lapse of time?

In relation to the first question, the Judge noted that the cases of S.H. v. Director of Public Prosecutions IESC 55, 3 I.R. 575, and PB v. Director of Public Prosecutions IEHC 401demonstrate that it is not open to the Court to announce that after a stated period of years an offence may not be prosecuted.

In relation to the second question, the same cases demonstrate that “experience has shown that in many cases, questions of prejudice are best addressed by trial judges in the light of the evidence actually given in the course of the trial”.

While the Judge acknowledged that there were issues related to missing medical records and witnesses in the current case, the issues did not appear to amount to prejudice at such a level as to justify restraining the trial.

Considering the claim of adverse pre-trial publicity, the Judge noted that the case had generated enormous publicity, as well as being the subject of an RTE documentary.

However, citing D. v. Director of Public Prosecutions 2 I.R. 465,Z. v. Director of Public Prosecutions 2 I.R. 476; Rhattigan v. Director of Public Prosecutions IESC 34, 4 I.R. 639 and O’Brien v. Director of Public Prosecutions IESC 39, he noted that there are almost no examples of where coverage has been held to justify the prohibition, as distinct from the postponement, of a criminal trial.

Considering that there had been little in the way of public comment since M.S. was charged in 2012, the Judge found no basis on which to prohibit the trials.

Finally, the Judge considered the fact that the draft indictment served on the 8th April 2013 included counts relating to six complainants who had not been the subject of any of the charges sent forward from the District Court.

The Court found that under s.4N of the Criminal Procedure Act 1967, the joining of new charges not founded on the documents already served on the accused required the consent of the accused.

The charges were found to be of this nature, and as M.S. had not given consent, must form part of a separate free standing prosecution. As this was a jurisdictional matter, the Judge granted declaratory relief in that regard.