The High Court has refused M.S.’s application to prohibit a further prosecution over 31 historic indecency allegations, finding the judicial review proceedings were out of time and that the substantive case for stopping the trial had not been made out.
The charges in bill DU874/2019 concern alleged incidents between January 1968 and December 1992. The complaints were made between April 2012 and February 2014. M.S. sought to stop the prosecution, which was before the Circuit Criminal Court, and to have any further proceedings stayed. A claim for damages was not pursued.
Justice Miriam O’Regan held that the application, filed on 4 June 2020, required an extension of the time limit for judicial review. Even accepting the applicant’s argument that the time began when he received an explanation for the charging delay, the court found that explanation had already been given in a letter received on 13 December 2019. The three-month period expired on 13 March 2020. The judge was not satisfied that the required grounds for extending time had been established.
The court also considered the substance of the application. It found no unreasonable delay between the last complainant statement in February 2014 and the Director of Public Prosecutions’ direction to charge in May 2017, given the investigation’s complexity and the volume of complaints. The later delay before M.S. was charged in May 2019 resulted from an oversight: the intended notification to his solicitor was not sent while other trials were ongoing. The judge found that this caused possible prejudice because M.S. lost the opportunity to express a view about having the complaints heard alongside an earlier bill. That potential prejudice covered five months, from the direction to charge until a trial under bill 498/16 began in October 2017.
The judge rejected the argument that the further trial was oppressive merely because M.S. had faced earlier trials. The current complainants had not been the subject of those trials, and the judge found the circumstances fell within an exception to the general principle that related charges should be tried together.
M.S. was 87 when judgment was delivered and was due to turn 88 before the prospective June 2021 trial. The court considered evidence of poor physical and mental health, difficulties giving instructions, and claims of missing witnesses and documents. It held that these matters, individually and cumulatively, did not establish a real and unavoidable risk of an unfair trial that could not be addressed by the trial judge through rulings and directions.
After balancing the potential prejudice against the public interest in prosecuting serious charges, Justice O’Regan found the applicant had not shown that prohibition was warranted. The court refused all reliefs sought.