Judgment: 2016-01-15 · Court archive

High Court dismisses bid to stop retrial over child witnesses’ video interviews

The court refused leave for judicial review, finding no arguable basis to halt the prosecution or challenge the statutory provision at this stage. It said the trial should proceed on 18 January 2016.

High Court · [2016] IEHC 21

Who, what, where, when and why

Who
  • K.D. (Applicant)
  • Richard Humphreys (Judge)
What

The court refused leave for judicial review, finding no arguable basis to halt the prosecution or challenge the statutory provision at this stage. It said the trial should proceed on 18 January 2016.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

K.D. argued that the trial judge had used the wrong date to assess the complainants’ ages for the statutory provision. They were under 14 when interviewed but were 14 and 15 by the trial. Mr Justice Richard Humphreys held that the relevant age was the age at the time of recording, not at trial. He said the section’s wording and an earlier High Court decision supported that interpretation. He also held that the EU Victims’ Directive did not need to be considered for direct effect because the issue was resolved by interpreting existing Irish law consistently with the directive.

The High Court dismissed K.D.’s application for leave to seek judicial review that would prohibit a second trial on sexual offence charges involving two children. The court said the trial should proceed on 18 January 2016.

The charges are allegations and were not determined in this judicial review. The first trial began on 3 December 2015. The trial judge ruled that she had no jurisdiction to stop the prosecution for delay alone and that video recorded interviews with the complainants were admissible under section 16(1)(b) of the Criminal Evidence Act 1992. The jury was later discharged for reasons unrelated to K.D.’s application, and a new trial date was set.

K.D. argued that the trial judge had used the wrong date to assess the complainants’ ages for the statutory provision. They were under 14 when interviewed but were 14 and 15 by the trial. Mr Justice Richard Humphreys held that the relevant age was the age at the time of recording, not at trial. He said the section’s wording and an earlier High Court decision supported that interpretation. He also held that the EU Victims’ Directive did not need to be considered for direct effect because the issue was resolved by interpreting existing Irish law consistently with the directive.

The applicant also relied on alleged delay-related stress and anxiety. The judge said the difficulties described were largely connected to the serious allegations, and any additional prejudice attributable to delay fell far short of the severe and inevitable prejudice needed to stop a trial. He noted that the applicant had not set out her defence case in her affidavit.

On the constitutional challenge to section 16(1)(b), the judge found no arguable case of unfairness or discrimination. He also said judicial review at this stage was inappropriate for the challenge, which could be pursued after the criminal process and any appeal if necessary. Separately, the application was out of time: the relevant events had occurred more than three months earlier, and the trial judge’s ruling did not restart the time limit.

The court dismissed the application and recommended that K.D. receive legal costs associated with the leave application under the Custody Issues Scheme. It did not determine the underlying criminal charges.

Read the original court judgment

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