The Court of Appeal has refused to prohibit a prosecution of M.S. over historical indecent assault allegations, but ruled that six additional charges cannot be added to the existing case without his consent. The Director of Public Prosecutions may pursue those charges separately.
In a judgment delivered on 22 December 2015, Mr Justice Gerard Hogan said the allegations concerned 22 complainants and events said to have occurred between 1964 and 1991. M.S. was charged in July 2012. He had previously been tried in 2003 on 11 counts concerning six complainants and was acquitted on all counts. The judgment said his name was later removed from the medical register by a Medical Council decision in 2008, which he did not appeal.
M.S. sought to stop the pending prosecution, arguing that the long delay, pre-trial publicity and joinder of additional charges threatened a fair trial. The High Court had refused to prohibit the prosecution. On appeal, the Court of Appeal held that the extraordinary passage of time, by itself, did not permit the court to set a deadline after which an indictable prosecution could not proceed. It also concluded that the missing records and unavailable witnesses identified in this application did not establish sufficient irremediable prejudice to stop the case before trial. A trial judge could address fairness concerns in light of the evidence presented, including by making appropriate rulings or stopping some or all of the prosecution if justice required.
The court also rejected the argument that publicity justified prohibiting the prosecution. It noted that the most prominent publicity described in the application predated the July 2012 charges and had occurred years earlier. The judgment left open that recent publicity might, in a suitable case, justify postponing a trial; it found no basis to prohibit this prosecution on that ground.
The separate issue concerned six further complaints that had not formed part of the charges sent forward from the District Court. The court held that adding those charges required M.S.’s consent under section 4N of the Criminal Procedure Act 1967, as amended. As consent had not been given, the six charges could be brought only in a separate prosecution. The Court of Appeal varied the High Court order to grant a declaration on that point; it did not stop the existing prosecution.