The Court of Appeal has restrained further prosecution of an 88-year-old retired consultant surgeon on a bill of 31 indecent assault charges, finding that the combined circumstances made a trial unjust. The injunction applies to bill 874/19, then before Dublin Circuit Criminal Court, “at present”; the court did not determine the charges.
The appeal challenged a High Court order refusing an injunction and refusing to extend the time for bringing the judicial review. The Court of Appeal set that order aside, granted an extension of time and allowed the appeal.
The allegations concern 11 people and are said to span January 1968 to December 1992. The judgment records that the complaints were made between April 2012 and February 2014. The appellant was charged on 3 May 2019. No indictment had been lodged, and a trial date of 8 June 2021 had been vacated.
The Court of Appeal found that the High Court had identified two years of prosecutorial delay between a direction to charge in May 2017 and the charge in May 2019. It also found that the appellant’s solicitor had sought clarification about the delay, with a response received on 22 January 2020. The appeal court said the solicitor was justified in seeking further clarification and extended time, citing that correspondence, the ensuing court restrictions during Covid-19, and circumstances outside the appellant’s control.
On the substance, the appellant argued that his age, poor physical and mental health, the passage of decades, prior trials and delay should be assessed together under the exceptional-circumstances test for stopping a trial. The Director of Public Prosecutions argued that the High Court had conducted the required balancing exercise and that health and trial participation issues could be addressed by the trial judge.
The Court of Appeal agreed with the appellant that the High Court had not applied the required cumulative assessment. It considered the long lapse of time, the appellant’s age and health, three earlier trials, and the fact that he had not been given an opportunity to discuss whether the charges could be tried alongside earlier proceedings. The judgment said no single factor was enough, but their combined effect placed the case among the rare circumstances in which proceeding would be unjust.
The court’s injunction restrains the DPP from taking further steps to prosecute the appellant on bill 874/19 at present. It did not rule on guilt or make a final costs determination: it expressed a provisional view that costs should be awarded to the appellant, subject to submissions or an application for an oral hearing within the stated periods.