The High Court has refused to halt the trial of an anonymised man accused of historic sexual offences against his younger brother and sister in the family home.
B is accused of raping and sexually assaulting his sister J when she was aged about six or seven and he was 13 to 14. He also faces allegations concerning his brother T, who was aged 12 to 13 when B was 15.
The complaints concern alleged acts between 1994 and 1997. J and T reported them to Gardaí in early 2017. B was arrested and interviewed in March 2017 and made no admissions during eight interviews. The DPP initially directed that there should be no prosecution in April 2018, but reversed that decision following an appeal by the complainants.
B sought judicial review to prohibit the prosecution. His central argument concerned the old common-law presumption of doli incapax. For alleged offences committed before its abolition, a child aged between seven and 14 was presumed incapable of crime unless the prosecution proved that the child understood the conduct was seriously wrong, rather than merely naughty or mischievous.
B argued that the delay meant a jury could no longer fairly decide what he understood as a 13-year-old. A forensic psychiatrist had said he could not retrospectively assess B's capacity without contemporaneous records.
Mr Justice Barr rejected the application. He held that the psychiatrist's difficulty closed off only one possible avenue of evidence. A jury could consider other evidence, including B's age, the alleged arrangements to be alone with J, a closed bedroom door and later messages and handwritten notes in which he expressed regret and referred to sexual conduct involving his siblings.
The judge stressed that the trial jury, properly directed, must decide whether the childhood presumption is rebutted. If a fair trial ultimately proves impossible, the trial judge can intervene or withdraw a charge from the jury.
The prosecution was therefore permitted to continue. The High Court also directed that nothing identifying B or the complainants be published.