The High Court has proposed an order prohibiting the trial of an anonymised man on two remaining counts of indecent assault alleged to have occurred in 1972. He had pleaded guilty to one of three counts in 2015. The judgment does not state the sentence on that count, and the proposed order concerns the trial on the other two.
In a judgment delivered on 28 March 2017, Ms Justice Baker said the case presented exceptional circumstances. The man’s application for judicial review sought to stop the prosecution, citing delay, missing or unavailable evidence, disclosure problems and unfairness.
The complainant, his sister, first made a statement to gardaí in 2011, then said she did not wish to pursue the matter. She made a further statement in January 2014. The man was arrested and charged in February 2015, and pleaded guilty to one count in June that year. The remaining counts were set for trial. The DPP later accepted that disclosure remained outstanding, and that trial date did not proceed.
The judgment described disclosure as patchy, attributing gaps to historical record keeping and documents that had been destroyed or could not be traced. The complainant’s mother, who had given a statement about an incident and a doctor’s examination, had died. The doctor could not be located. Justice Baker said the missing evidence and records made a trial more difficult, but, considered alone, did not justify stopping it: a trial judge could address fairness through evidential rulings, jury directions and other procedural measures.
The decisive concern was the man’s present ability to participate. A forensic psychiatrist reported gross impairment and an irreversible, progressive dementing process, and considered him unfit to stand trial. The judge held that fitness to stand trial was for the trial court to determine under the Criminal Law (Insanity) Act 2006, rather than an issue for determination in this judicial review. She nonetheless considered his cognitive condition as part of the wider fairness assessment.
Justice Baker said his condition now left him unable to give his lawyers adequate instructions to challenge allegations involving events said to have occurred close together in the family home. She considered that his guilty plea had been entered when he had capacity, while delay and the loss of evidence had since left him unable adequately to defend the remaining charges. The judgment also noted the complainant’s initial decision not to proceed and the time that followed.
The court concluded that the combination of the plea, the passage of time, the parties’ circumstances, and the man’s serious cognitive impairment made it unfair to require him to face trial. The judge said she proposed to make an order prohibiting that trial. The judgment does not state a final order disposing of the guilty-plea count.