The High Court found that an accused man had established a real risk that he could not receive a fair trial on ten indecent assault charges concerning alleged events from the 1960s. The judgment’s conclusion says he succeeded in making that showing; it does not state a formal order prohibiting the trial.
The judgment, delivered by Mr Justice Charleton on 5 February 2010, concerns a judicial review application seeking to stop the prosecution because of delay. The charges alleged one assault on M. between June 1966 and December 1967, and nine assaults on N. between January 1964 and June 1969. The allegations were not determined at this hearing.
The judgment says the allegations surfaced publicly after a scuffle at a family funeral in early August 2007. Gardaí took statements from M. and N. on 17 August. The accused was questioned at a Garda station in County Clare on 20 August. The judgment records that he was charged with ten offences on 16 May 2007, a date that appears inconsistent with the surrounding sequence. It says he received the book of evidence on 30 May 2008, and began judicial review proceedings after two psychiatric reports in March 2009.
M. told Gardaí that, about 40 years earlier, the accused had asked him to touch the accused’s erect penis during a fishing trip. N. said the abuse began when she was about eight, continued for a few years and took place in the accused’s family home. The accused denied the allegations. He told Gardaí he had never gone fishing and said he had never been alone with N. in his home.
The applicant argued that the long delay and his mental disability meant he could not adequately defend himself. His mother, described in the judgment as potentially important to evidence about his care and circumstances, had died about 17 years earlier. The court considered two psychiatric reports: one described him as having a mild to moderate learning disability and unfit to plead or instruct counsel; the other raised concerns about his ability to weigh the consequences of a plea but reserved an opinion on fitness to stand trial.
The court rejected the argument that judicial review should replace the fitness-to-be-tried process under section 4 of the Criminal Law (Insanity) Act 2006. It said fitness must be determined through that statutory procedure.
On delay, the judge said the accused’s limited recall and ability to instruct counsel, alongside the passage of more than four decades and his mother’s death, meant a fair trial could not confidently be expected. The judgment concluded that he was among the rare applicants who had shown a real risk of an unfair trial. It did not decide whether he was guilty or innocent.