The Supreme Court has dismissed J.B.’s appeal seeking to stop his criminal trial over alleged indecent assaults, while upholding an order prohibiting prosecution in relation to one complainant, identified as M.K.
J.B. was returned for trial on 14 charges concerning five nieces and alleged events between March 1971 and March 1987. He argued that the passage of time had denied him a trial with due expedition and caused serious, irreversible prejudice to his defence. The Director of Public Prosecutions cross-appealed the High Court order barring proceedings relating to M.K.
The High Court had made that order on 14 November 2003 but refused the remainder of J.B.’s application. The Supreme Court considered the appeal under the test set out in H. v Director of Public Prosecutions: whether delay created a real or serious risk of an unfair trial, while leaving room for wholly exceptional circumstances in which it would be unfair or unjust to proceed.
Delivering judgment on 29 November 2006, Denham J. said the test applied. The Court found that J.B. had not established a real or serious risk that delay would prevent a fair trial, or that this was a case where putting him on trial would be unfair or unjust. It dismissed his appeal and affirmed the High Court order.
The Court accepted that the delay was inordinate, but found that J.B. had not established blameworthy prosecutorial delay. It also considered evidence that he experienced a stress reaction after a Garda interview in 1996 and had later sought adjournments on health grounds. The judgment said that one stress episode did not warrant prohibiting the trial; the medical evidence before the Court was scant, and the question of his capacity to plead could be raised before the trial judge.
The judgment stressed that refusing to prohibit proceedings did not remove the trial judge’s duty to ensure due process and a fair trial. Issues arising from delay or evidence given during the trial could still require attention, and the trial judge retained jurisdiction to prevent the trial from proceeding if fairness required it.
The Supreme Court dismissed the DPP’s cross-appeal concerning the extension of time connected with M.K. and affirmed the prohibition relating to that complaint. The judgment therefore left the other proceedings to continue, subject to the trial court’s continuing duties.