The Supreme Court refused J.B.’s application to prevent a prosecution over alleged offences said to have occurred about 36 years before the anticipated trial began and about 20 years before its latest alleged offence. The Court found that the evidence presented did not establish a sufficient basis to prohibit the trial because of delay.
In a judgment delivered on 29 November 2006, Mr Justice Hardiman agreed with the order proposed by Ms Justice Denham. He said the governing test, set out in the Court’s recent decision in H. v. Director of Public Prosecutions, was whether delay created a real or serious risk that the accused would not receive a fair trial. Delay in making a complaint did not generally require an inquiry into its reasons, although wholly exceptional circumstances might make a trial unfair.
Justice Hardiman accepted that the prosecution had caused J.B. considerable stress and anxiety. The judgment said it appeared uncontradicted that J.B. suffered an acute stress reaction after questioning by gardaí and was admitted to hospital for ten days in 1996. But medical reports referred to in the proceedings were not put before the Court. The evidence also did not explain specifically how stress, age, health or the difficulties of answering old allegations would prejudice the defence beyond the general effects of facing a criminal charge.
The Court therefore refused relief. The judgment did not decide the truth of the allegations or the outcome of any criminal trial. It stressed that the failed application did not remove the trial judge’s duty to ensure due process and a fair trial. Depending on how the evidence develops, the trial judge may stop the trial or give warnings or cautions to the jury.
Justice Hardiman also made broader observations about the risks of trying old cases, including faded memories, unavailable witnesses and lost opportunities to challenge allegations. He raised questions about what warnings juries should receive and called for fuller recording and investigation of old allegations. Those observations were obiter and did not form the order in J.B.’s case.