About this case:

• Citation:
  [2023] IEHC 502
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering the judgment, Mr Justice Barr found that the ultimate prosecution would not be unfair or unlawful. The court also determined that significant delay in the case had not prejudiced the applicant, noting that alleged victims “have a right to have these matters investigated”.

Background

The applicant sought to prohibit his prosecution on 151 counts of indecent assault allegedly perpetrated against nine complainants between 1974 and 1983 while the complainants were students in a primary school in Dublin, where the applicant taught. The applicant’s trial is due to commence in January 2024.

The applicant sought to prohibit his trial on two grounds. First, due to the delay in the case, which would render it unfair or unjust to try him. Second, he argued that a nolle prosequi procedure was unfairly and unlawfully used by the respondent to halt his initial trial, so that they could include a further six complainants, which the applicant claimed amounted to gaining an unfair advantage.

The applicant, a retired teacher, is 71 years of age. His is currently in prison for other sexual offences, including rape and sexual assault offences. Following a nolle prosequi, which effectively acts to abandon an ongoing prosecution, his planned trial was replaced with a new indictment, which now included additional allegations.

The applicant’s submissions

The applicant highlighted that the total delay between the date of the alleged events, and the date of the trial, was 40–49 years. He also claimed to be in poor health, and complained that allegations made by four of the complainants could have been prosecuted as part of earlier trials in 2014 or 2015.

He highlighted PT v. DPP [2007] 1 IR 701, where the court ordered prohibition on the basis that the events in question occurred 37 and 42 years previously, and because the applicant was 87 years of age and in bad health.

It was also submitted that a nolle prosequi could not be used by the prosecution to gain an advantage, or to deprive an accused of an advantage that he/she had already obtained in the extant proceedings.

The applicant claimed that he was disadvantaged by the nolle prosequi in two ways. First, instead of facing allegations by three complainants, he was now facing allegations by nine complainants. Second, he argued that this number of defendants making similar allegations would make it harder to mount a defence that the allegations were fabricated.

The respondent’s submissions

In accepting the considerable delay, the respondent noted that the applicant did not allege any specific prejudice as a result of that delay.

It was also argued that the relevant trial judge could deal with many of the other matters raised, and that there was no concern that the applicant would not receive a fair trial. Finally, the applicant’s belief that his trial may be more difficult did not render the nolle prosequi unlawful or inappropriate.

Consideration

The court first noted that when considering delay, in relation to historic sex abuse cases, the sole focus should be whether the accused has been prejudiced by the delay, such that he or she can no longer receive a fair trial. Here, the court was not persuaded that the accused had been so prejudiced.

The court also rejected arguments made about the applicant’s age, which argued that at 71 he would be incapable of properly defending himself or giving instructions to his legal team. In this regard, the court noted that members of the civil service have the right to work until the age of 70.

In relation to the claim that these complaints should have been dealt with in earlier trials, the court stated that, given the numerous complaints made over a long period, it was inevitable that there may be multiple trials. The judge stressed:

The court, therefore, was not persuaded that the periods of delay were sufficient to warrant prohibition of the trial, particularly in the absence of any assertion of the applicant having suffered specific prejudice.

Finally, the court considered State (O’Callaghan) v. Ó hUadhaigh [1977] IR 42, which held that the court should not permit the prosecution’s power to enter a nolle prosequi to be exercised in a fashion which would give the prosecution a signal advantage over the defence.

However, in this case, the judge was not satisfied that the respondent used the nolle prosequi procedure in a way that was unfair. The nolle prosequi had not been used to the applicant’s detriment, because no advantage had accrued to him, as the relevant trial had not commenced.

Further, given the dates on which the statements of complaint were made to the gardaí in respect of the later charges, it would not have been possible for them all to have been included in the earlier bill. It was therefore reasonable for the respondent to have entered a nolle prosequi and to have proceeded with new and additional charges in the later bill.

Conclusion

Ultimately, the court was satisfied that there was “nothing underhand or unfair in the respondent electing to enter a nolle prosequi”.

The court also rejected the applicant’s complaints of “piecemeal” prosecutions arising out of broadly similar complaints, noting that, if anything, it is in his interest to have all of the charges determined in the one trial.

The court stressed: “If the applicant wishes to make the case that he cannot get a fair trial due to the number of complainants, or the multiplicity of charges on the indictment, he can apply to the trial judge to sever the indictment. In that way his right to a fair hearing has been protected.”

For these reasons, the court refused the reliefs sought.

SO’C -v- The Director of Public Prosecutions [2023] IEHC 502