The Supreme Court has prohibited the prosecution of J M on two indecent assault charges relating to PB, ruling that the combined circumstances created a real risk to J M’s right to a fair trial.
In a judgment delivered on 28 July 2004, Mr Justice McCracken allowed J M’s appeal and granted the order of prohibition sought. The court said the delay alone would not have been enough to prohibit the trial, but that it had to be considered alongside other features of the proposed case.
J M had been charged in July 1999 with 21 counts of indecent assault allegedly committed at an industrial school in the 1960s. Nineteen counts arose from complaints by JB; the remaining two concerned PB and were alleged to have occurred between January 1964 and January 1966.
The court noted that the prosecution had undertaken not to proceed with the 19 charges relating to JB. It said the most serious of JB’s allegations involved another pupil, T McN, but a statement taken from that witness was not included in the book of evidence or provided to J M. The judge said the decision not to proceed with any of JB’s charges appeared to indicate that the prosecution considered JB’s evidence unreliable.
The two charges concerning PB remained. PB’s first statement to gardaí in July 1995 described two alleged incidents, but gave the alleged assailant the same incorrect name used in JB’s statements. It placed PB at between 10 and 12 years old for one incident and about 12 for the other. In a later statement in 1999, PB corrected the name and identified the person as the band master; he gave different ages, saying he was 14 for one incident and 13 and a half for the other.
The court also considered that PB first complained after speaking with JB, that his account of an earlier disclosure to a “summer Brother” did not appear in his statements, and that there were no records establishing which pupils had shared PB’s dormitory. The judge did not suggest the complainants had colluded, but said there was a danger PB’s recollection may have been influenced by what JB told him.
The judgment accepted, for the limited purpose of assessing delay, that PB’s fear of not being believed and his position in relation to a Christian Brother helped explain why he did not report the allegations sooner. It also recorded that almost four years passed between PB’s first complaint and J M being charged, followed by about 21 months before the book of evidence was served. The court said parallel investigations provided a reason for the delay, which was not by itself sufficiently blameworthy to stop the trial.
The order concerned the proposed prosecution on the PB charges. The judgment does not determine whether the alleged assaults occurred; it concludes that, considering all the circumstances, a fair trial was at real risk.