The Supreme Court has restrained further prosecution of two indecent assault charges against D.W., finding a real risk of an unfair trial because the allegations turned on when events occurred and whether the complainant was under 15.
In a judgment delivered on 31 October 2003, Mr Justice Hardiman said the alleged offences dated to November and December 1985. The complainant was born on 16 April 1971, so the disputed period covered the few months around his 15th birthday. The court said the passage of more than 18 years, and vagueness in the evidence about dates, left D.W. in a significantly worse position in contesting the timing.
The timing mattered because consent was not a defence to indecent assault if the complainant was under 15. If he was older, consent could be relevant. The judgment also noted that the maximum sentence for indecent assault was five times that for gross indecency. Hardiman said the defence would have to address age and potentially consent without knowing how a jury would resolve the timing issue, creating a real risk of unfair trial.
The prosecution had also brought 12 charges of gross indecency, alleged to have occurred between September 1986 and March 1988. Hardiman said the age and consent issues that drove his conclusion on the two indecent assault charges did not apply to those charges. He agreed that no prejudice had been established in relation to them and dismissed the appeal as to those counts.
The judgment discussed financial allegations involving the complainant and D.W. but excluded them from its assessment because the relevant material had not been properly put before the court in evidence. Hardiman also noted that the challenge to the legal propriety of the gross indecency charges had not been pursued in these proceedings.
The court therefore granted relief restraining prosecution on charges 1 and 2 in the statement of charges and otherwise affirmed the High Court order. The judgment addressed the application to stop the prosecution; it did not determine whether the alleged offences occurred.