The Supreme Court has set aside a High Court order barring the further prosecution of T.H. on a sexual assault charge, finding that the delay relied on to stop the case was largely tied to judicial review proceedings initiated by T.H.
In a judgment delivered on 25 July 2006, Mr Justice Fennelly said the High Court was right to reject T.H.’s original claim that the Director of Public Prosecutions (DPP) had improperly pressured him to plead guilty. But the Supreme Court found the High Court judge had erred by prohibiting the prosecution on delay grounds.
T.H. was charged in 1996 with sexual assault, alleged to have occurred on 23 June 1995. He began judicial review proceedings in 1997 seeking to prevent his trial. The High Court later found that delays attributable to the DPP had breached T.H.’s right to an expeditious trial and that a fair trial was at risk. It prohibited the prosecution.
The Supreme Court rejected the claim of improper pressure. It said an early statement by the prosecution about summary trial had been mistaken, but the position was clarified: the DPP would consent to summary sentencing if T.H. pleaded guilty. T.H. was never asked how he would plead, did not plead, and was not put to an election. The Court said the High Court had correctly dismissed this part of the judicial review application.
The Court also held that the High Court should not have ruled on the risk of an unfair trial. That issue was not included in the grounds for which leave to pursue judicial review had been granted, and T.H. had not sought leave to add it.
On delay, Mr Justice Fennelly acknowledged periods of unnecessary delay by the DPP, including time taken to produce a document ordered in discovery. But he said the overall history showed that T.H. was principally responsible for the delay because he had brought the judicial review proceedings and pursued extensive discovery disputes and appeals. The Court said there was no real risk of an unfair trial established in the permitted grounds, and that prolongation of the stress associated with a pending charge did not outweigh the public interest in prosecution.
The Court allowed the DPP’s appeal, set aside the High Court order, dismissed the judicial review application and discharged the injunction granted in February 1997. The judgment did not determine T.H.’s guilt or innocence; the prosecution was no longer barred by that injunction.