The Court of Appeal has dismissed an appeal by an anonymised appellant who sought to prevent a trial on seven counts of gross indecency and to challenge the constitutionality of the offence.
The charges concern alleged acts between November 1978 and June 1980 involving a former pupil and the appellant, who was a secondary-school teacher at a north Dublin school. The judgment says the complainant was between 15 years and 11 months and 17 years and six months during the charged period. The Director of Public Prosecutions (DPP) had told the High Court it would not prosecute acts after the complainant turned 17, although the indictment had not been amended to reflect that position.
The appellant argued that the long delay created a real risk of an unfair trial, and challenged section 11 of the Criminal Law Amendment Act 1885 under the Constitution and the European Convention on Human Rights. The High Court rejected those challenges in November 2015, and the appellant appealed.
The Court of Appeal found that the prosecution delay could have been shorter but was not gross or egregious. It said the appellant had not identified critical evidence lost through delay or shown prejudice sufficient to justify stopping the case before trial. The court noted that the trial judge would be responsible for protecting fairness, including by giving the jury a warning about the effects of delay, and could withdraw the case from the jury if a fair trial proved impossible.
On the constitutional challenge, the court concluded that the appellant lacked standing to make the arguments advanced in the circumstances of his case. It also commented on the substance of the challenge, finding the offence sufficiently certain and rejecting the arguments concerning consent, gender discrimination and privacy. The judgment said the alleged conduct, if proved, would fall within conduct properly addressed by criminal law.
The appeal court therefore left in place the High Court’s refusal to prohibit the trial and to grant the requested declaration and other relief. It did not determine whether the alleged acts occurred or whether the appellant was guilty. Those matters remain for the criminal trial.