The Supreme Court has restrained the further prosecution of an anonymised applicant on a rape charge, ruling that replacing an earlier charge with one carrying much greater consequences was unfair in the circumstances.
The appeal followed a High Court refusal to stop the prosecution. The case arose from a sexual encounter in a van in Wexford on 21 February 2003. The complainant alleged rape; the applicant maintained that the sexual contact was consensual. The judgment states that the complainant was three weeks short of her seventeenth birthday at the time.
In February 2004, the Director of Public Prosecutions directed that the applicant be charged with attempted unlawful carnal knowledge under the Criminal Law Amendment Act 1935. He elected for trial on indictment, and the case was adjourned while the courts considered the effect of a Supreme Court ruling that struck down a provision of the 1935 Act.
After a later Supreme Court judgment clarified the legal position, the prosecution reviewed the file. No new or additional evidence had emerged. In September 2006, the Director directed that a rape charge be brought and the earlier charge discontinued. The earlier charge was formally ended by a nolle prosequi; the applicant was then arrested and charged with rape, which carried a possible life sentence on conviction.
The applicant sought judicial review, arguing that the change breached fair procedures. The High Court refused relief. On appeal, the Supreme Court distinguished the case from one where a decision not to prosecute had been communicated and then reversed. It also found no basis to conclude that the prosecution acted in bad faith or under an improper policy.
However, the Court held that the scale of the change mattered. The earlier charge had exposed the applicant to a maximum two-year sentence on indictment, while the substituted rape charge carried a possible life sentence and would be tried in the Central Criminal Court. The judgment said the same material had first been considered insufficient for a rape charge, and the applicant had not contributed to the dramatic change in his position.
The Court did not decide whether the Criminal Law (Sexual Offences) Act 2006 could have provided an alternative charge, noting that it did not need to resolve that question. It allowed the appeal and restrained further prosecution on the rape charge. The order concerned that prosecution; the Court did not determine the underlying allegation of rape.