The High Court has refused an application to permanently stop the prosecution of a man charged with burglary and sexual assault arising from an incident in Skibbereen, Co Cork, on 13 November 2004.
Mr Justice Hedigan ruled on 1 July 2009 that the applicant had not shown grounds for prohibiting the prosecution. The application concerned fresh proceedings begun after the Director of Public Prosecutions entered a nolle prosequi in the earlier case.
The Circuit Court had ruled in July 2006 that the applicant was unfit to plead and adjourned the matter for a medical examination. Dr Harry Kennedy, Clinical Director of the Central Mental Hospital, later reported that the applicant was fit to plead. After several adjournments, the DPP entered a nolle prosequi on 22 November 2007 and commenced fresh proceedings on 25 March 2008.
The applicant argued that the renewed prosecution was unfair. He said it would deprive him of the benefit of the earlier unfitness finding. He also alleged that the DPP’s legal representatives and Professor Kennedy had privately discussed the medical report, prompting a tactical decision to end the first case and depriving him of an opportunity to challenge the report before the trial judge.
The DPP argued that fitness to plead can change over time and that the applicant had identified no prejudice sufficient to justify stopping the prosecution. Its counsel relied on earlier decisions concerning renewed prosecutions after a nolle prosequi.
The judge said the threshold for permanently stopping a prosecution was high: the applicant had to establish a real risk of an unfair trial. He found no evidence that the DPP had entered the nolle prosequi to avoid an adverse ruling, as the court had found in an earlier case relied on by the applicant. He also noted there had been no assurance that the applicant would not face a fresh prosecution, and no comparable delay to that in another case where a trial had been prohibited.
The court rejected the argument that the earlier unfitness finding was a lost benefit, saying a person’s mental state may change and be considered again. It also found no wrongdoing in the meeting with Professor Kennedy. The report had been provided to the applicant when it became available, the judge said, and the DPP was entitled to discontinue proceedings without a general duty to give reasons.
The court refused the relief sought. It did not determine the applicant’s guilt or innocence, or whether he was fit to plead in the fresh proceedings.