The Court of Appeal has quashed the acquittal of a woman identified as BK and ordered a retrial on five charges, ruling that a trial judge was wrong to exclude evidence of interviews conducted as part of child welfare assessments.
BK was acquitted on all five counts on 14 July 2021, after the trial judge excluded evidence from interviews with forensic psychologist Dr Sullivan. The Director of Public Prosecutions appealed under section 23 of the Criminal Procedure Act 2010, arguing that the judge had wrongly excluded compelling evidence.
The charges concerned alleged sexual assaults involving three complainants, each of whom the judgment describes as one of BK’s sons, and a separate charge under the Children Act 2001. The Court of Appeal’s decision addresses the admissibility of the interview evidence and whether there should be a retrial. It does not decide the truth of the charges.
The interviews took place in August and September 2015 in connection with risk and safeguarding assessments arranged in family court proceedings. BK had signed a consent form stating the interviews were not confidential and that their content could be included in a report. The judgment says she made admissions during the interviews, including, on the final day, to sexual contact with each of her three sons. These were reported admissions, not findings of guilt.
The trial judge concluded that the interviews were not voluntary and fell below the basic standard of fairness in a criminal trial. He cited the interview process, use of a polygraph, the absence of a caution and the lack of protections such as access to a solicitor during the interviews. He excluded the interview evidence, after which the prosecution did not oppose an application for a directed verdict of not guilty.
On appeal, the Court of Appeal said the issue was whether the interviews, viewed as a whole, were unfair—not whether they followed the procedures used for Garda interviews. It noted that the interviews had been conducted for risk and safeguarding assessments, not with the expectation that answers would be used in a prosecution. It also cited the extensive legal advice BK had during the two-week interval before her significant admissions.
The court concluded that the interviews were not unfair and that their contents could be considered at trial. It held that the trial judge was wrong to find the interviews non-voluntary and to exclude the evidence. Finding that potentially compelling evidence had been excluded, the court quashed the acquittal and directed a retrial in the interests of justice. The retrial will determine the charges; the appeal judgment itself is not a conviction.