The High Court has prohibited the Director of Public Prosecutions from further prosecuting H.S. over allegations of indecent assault and rape, finding a real risk that the delay would prevent a fair trial.
Mr Justice Garrett Simons delivered the judicial review judgment on 1 March 2019. The allegations concern two complainants, identified only as the first and second complainants. The judgment describes them as sisters of the applicant. The alleged offences span 1974 to 1985; most were not tied to specific dates. No indictment had been served.
H.S. argued that the passage of decades had deprived him of witnesses who might have supported his defence. He said he had lived with relatives rather than at the family home during part of the period, and that his wife, who died in 2012, could have given evidence about his visits. Other potentially relevant witnesses, including relatives and a doctor who had examined the second complainant, had also died or were unavailable. Surviving witnesses were elderly, and some had no clear recollection of events.
The court considered the prosecution evidence and the limits on what could now be tested. The charges generally lacked precise dates, making it difficult to challenge the allegations through cross-examination or an alibi. For two incidents with identifiable dates—the alleged Christmas Eve 1977 assault and an alleged rape on the day H.S. announced his engagement—potential witnesses were no longer available, while the complainants’ mother had little recollection of many events.
The judgment also addressed differing accounts of a separate Christmas Day incident involving an alleged shotgun discharge. The second complainant recalled a gun being fired; her mother did not. The uncle said to have been involved had died, and another witness was too ill to be interviewed. The judge considered the dispute potentially relevant to assessing the second complainant’s recollection.
The DPP objected that the judicial review application was brought outside the three-month time limit. The judge rejected the objection, holding that the application was within time in light of the late disclosure of the mother’s supplemental statement and a later prosecution letter. He said the supplemental statement strengthened, and may have first provided, grounds for the application. Alternatively, he extended the time limit to 11 June 2018.
The judge concluded that warnings to a jury would not address the risk created by the missing witnesses, uncertain dates and limited recollections. Although trial judges generally assess delay-related prejudice in light of the evidence at trial, he considered the risk here clear enough for the High Court to intervene.
The order prohibits further prosecution in respect of the prosecution described in the judicial review. The judgment does not set out its precise details or reference number to protect the complainants’ identities. The court did not uphold the applicant’s separate claims concerning prejudicial publicity or a supposed effort by the complainants to time their complaints to his release from prison.