Judgment: 2017-02-14 · Court archive

High Court quashes refusal of second counsel in historical assault case

The court ordered the legal aid application to be reconsidered, but refused to stop the trial over alleged delay. It did not decide whether the State’s handling of the case involved culpable delay.

High Court · [2017] IEHC 83

Who, what, where, when and why

Who
  • Director of Public Prosecutions (Defendant)
  • C.W.
  • Ní Raifeartaigh (Judge)
What

The court ordered the legal aid application to be reconsidered, but refused to stop the trial over alleged delay. It did not decide whether the State’s handling of the case involved culpable delay.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

Justice Ní Raifeartaigh held that the judge may have focused too narrowly on “complexity” and failed to weigh other relevant factors. She said the test was whether, without the representation sought, there was a real risk of an unfair trial, considering all relevant circumstances. The High Court quashed the refusal and remitted the question of second counsel for reconsideration. It did not itself order that a second counsel be assigned.

The High Court quashed a Circuit Court decision refusing a second counsel to an accused facing four indecent assault charges, and sent the application back for reconsideration. It refused to prohibit the trial on grounds of delay and left unresolved whether the State’s handling of the case involved inordinate or culpable delay.

The charges concern allegations by C.W., identified in the judgment as the accused’s niece, relating to events said to have occurred between 1980 and 1991. The judgment said some allegations described in her statement amounted in effect to rape, although the charges were indecent assault. The accused denied the allegations in a Garda interview in November 2014.

The accused sought judicial review of the refusal of second counsel, prohibition of the trial, and declarations and damages over delay. His lawyers argued that the case’s seriousness, the age of the allegations, difficulties in cross-examination, evidential issues concerning the rule against narrative, and the relationship with earlier prosecutions all warranted further consideration of representation. The Circuit Court judge’s reasons were available to the High Court only through the accused’s solicitor’s affidavit; there was no transcript of either legal aid hearing.

Justice Ní Raifeartaigh held that the judge may have focused too narrowly on “complexity” and failed to weigh other relevant factors. She said the test was whether, without the representation sought, there was a real risk of an unfair trial, considering all relevant circumstances. The High Court quashed the refusal and remitted the question of second counsel for reconsideration. It did not itself order that a second counsel be assigned.

The complaint was made in October 2013 and the accused was charged in April 2016. The judgment identified periods of inactivity in the Garda investigation and about ten months between the file reaching the Director of Public Prosecutions’ office and directions to charge. The applicant’s original claim that the delay was intentional and an abuse of process was not pursued at the hearing; the argument was narrowed to inordinate and culpable prosecutorial delay.

The court refused prohibition. It noted that no real risk of an unfair trial due to lost evidence was argued, and that the accused’s pre-trial custody followed his failure to comply with bail conditions; he had later been granted bail again. The judge considered his health and distress but found they did not justify stopping the trial. She made no ruling on whether the State’s delay was culpable or warranted other relief. The plaintiff later said he would not pursue declarations or damages.

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