The Supreme Court has restrained the further prosecution of an anonymised appellant charged with three sexual offences, finding that the circumstances were exceptional because the complainant had repeatedly sought money in return for silence about the allegations.
In a judgment delivered by Mr Justice Fennelly on 30 January 2007, the court allowed the appeal against a High Court decision refusing an injunction. It ordered that prosecution on any of the charges be restrained. The judgment said the court did not need to decide whether delay and missing evidence created a real risk that the appellant could not receive a fair trial.
The charges concerned alleged incidents in 1977 and 1987. The first two charges—buggery and indecent assault—related to the same alleged 1977 event and were described as alternative charges. The third was an alleged indecent assault on 22 August 1987. The appellant denied committing buggery. He later acknowledged making sexual advances on both occasions, including touching the complainant’s crotch, and masturbating in the complainant’s presence. The judgment said whether events were consensual would have been for a jury to decide.
The complainant first reported the 1987 incident to gardaí in September 1987 but made no complaint about 1977 at that time. The judgment recounts that, shortly afterwards, he sought IR£3,000 through a doctor in return for dropping the charges. It also describes repeated telephone demands for money, letters in 1996 offering to settle out of court, and a 1996 letter to the appellant’s wife proposing a deal. The complainant first complained to gardaí about the alleged 1977 rape in September 1996.
The Director of Public Prosecutions had directed in March 1997 that there be no prosecution. The appellant was arrested in October 1999, and the three charges were brought. In 1998, the complainant had been prosecuted after breaking windows at the appellant’s home and car; he received a suspended sentence and was ordered to pay compensation.
Applying the test set out in an earlier Supreme Court decision, the judgment said delay alone could not justify stopping the prosecution and found no blameworthy delay by prosecuting authorities. It treated the complainant’s repeated threats and demands for money, combined with the appellant being the target of serious charges and the complainant being the sole witness, as a completely exceptional circumstance. The ruling was a decision to halt the prosecution, not a jury finding on whether the alleged offences occurred.