The Court of Appeal has dismissed an appeal by K.D. against a High Court refusal to grant leave for judicial review of rulings made during her criminal case. The appeal concerned alleged prosecutorial delay and the proposed use of video recorded interviews with two child complainants.
K.D. was charged with sexual offences alleged to have been committed against two children, then aged nine and ten. The allegations are not findings of guilt. At a Dublin Circuit Court hearing on 3 December 2015, Judge Melanie Greally ruled that she had no jurisdiction to stop the prosecution solely because of delay. She also ruled that the relevant age for admitting the recorded interviews under section 16(1)(b) of the Criminal Evidence Act 1992 was the child’s age when interviewed. The jury was later discharged for unrelated reasons and a new trial date was set.
K.D. sought judicial review leave in the High Court. Her delay claim relied on stress and anxiety said to exceed what would have resulted from an expeditious prosecution. She did not claim that delay impaired her ability to defend the case or that she had been imprisoned pending trial. She also challenged the interpretation of section 16 and, alternatively, its constitutionality.
The High Court refused leave. On appeal, the Court of Appeal said the issue was whether the claims met the arguability threshold for leave, not whether the requested relief should ultimately be granted. It held the delay point could not succeed against the established position that a trial judge cannot stop proceedings solely on that basis. A claim based on stress and anxiety alone could be considered by the High Court in judicial review, but prohibition is rare and requires evidence and a balancing of the accused’s interests against the public interest in prosecution. The appellate court agreed that the material relied on did not provide a sufficient evidential foundation to make K.D.’s claim arguable.
The court also rejected the challenge to the statutory interpretation. It agreed that the age of fourteen was assessed when the interview was conducted, and found it unnecessary to decide whether the EU Victims’ Directive had direct effect. On the constitutional challenge, it found no ostensible error in the High Court’s conclusion that an arguable case had not been shown and that judicial review was not an appropriate route at that stage.
The Court of Appeal dismissed the appeal. It did not determine the criminal charges or order that the trial be stopped.