The High Court has prohibited the trial of an anonymised applicant on 29 rape charges against two of his sisters, ruling that the combined effect of unavailable hospital records, vague time frames for some counts and prosecutorial delay made prohibition necessary.
In a judgment delivered on 30 June 2011, Ms Justice Dunne granted relief sought by the applicant in judicial review proceedings against the Director of Public Prosecutions. The case concerned charges returned for trial in the Central Criminal Court. The court’s order stopped the trial from proceeding on all counts in the Book of Evidence.
The alleged offences were said to have occurred between June 1959 and January 1969. The DPP did not oppose prohibition on counts concerning one complainant, identified as M. Those counts related to alleged offences between August 1966 and January 1969. The court considered the remaining counts concerning C., which covered alleged offences from June 1959 to February 1967.
The applicant said he had suffered serious leg injuries and been on crutches, which could have helped his defence to a number of counts. He had said the injury occurred in 1966, but a newspaper report described an accident in May 1967, and C. recalled that it happened after her child died in January 1967. The judge said hospital records could have clarified the date, but they were no longer available. The uncertainty about the injury’s timing was, on its own, a reason she would be disposed to prohibit the trial.
The court rejected other arguments when considered individually. It found no demonstrated basis to conclude that C.’s unavailable medical records would assist the defence on a count alleging an offence in February 1967. It also found that the applicant had not shown how most deceased potential witnesses could have materially helped him. The judgment noted that the applicant’s mother might have been relevant to allegations concerning Sunday mornings, but concluded that other family members could give evidence on that issue.
The court separately prohibited counts 27, 28 and 29 because each covered a period from June 1959 to December 1966. It also found the time ranges for counts 16 to 19 and 21 to 24—about three years and seven months—too broad in light of the age of the allegations.
The judge found at least 12 months of prosecutorial delay unexplained. She accepted evidence that the prosecution and its duration had caused significantly increased stress and anxiety for the applicant. Weighing that evidence with the delay and the defence difficulties, she concluded that the trial on all counts should be prohibited and granted the relief sought.