Judgment
Title: | J.B. -v- Director of Public Prosecutions |
Neutral Citation: | [2006] IESC 66 |
Supreme Court Record Number: | 36/04 |
High Court Record Number: | 2001 441JR |
Date of Delivery: | 11/29/2006 |
Court: | Supreme Court |
Composition of Court: | Denham J., Hardiman J., Macken J. |
Judgment by: | Hardiman J. |
Status: | Approved |
Result: | Dismiss |
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| Judgments by | Link to Judgment | Concurring | Denham J. | | Macken J. | Hardiman J. | | | |
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[2006] IESC 66
THE SUPREME COURT
36/04
Denham J.
Hardiman J.
Macken J.
J.B.
Applicant/Appellant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
JUDGMENT of Mr. Justice Hardiman delivered the 29th day of November, 2006.
I agree with the order proposed by Mrs. Justice Denham.
1. The case is one of the earliest to become before this Court after its significant decision in H. v. Director of Public Prosecutions (unreported) Supreme Court, 31st July, 2006). For this reason, though agreeing with the order proposed, I have ventured to prepare this short judgment of my own.
2. The facts of the case have been amply set out in the judgment of Denham J. and I do not propose to repeat them here. I would however observe that, assuming it is possible to have a trial of the applicant next term, such trial will take place about 36 years after the first, and about 20 years after the last, of the dates when the alleged offences are said to have occurred.
H. v. DPP.
3. The starting point in any case of this nature henceforth must be the recent judgment of the Supreme Court in H. There are two passages in particular to which I wish to draw attention:
“The Court is satisfied that in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in making a complaint. The issue for a court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court does not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial”.
4. The second passage is as follows:
“The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case”.
5. I wholeheartedly welcome the approach to cases of this type mandated in the judgment of this Court in H. In J.O’C v. DPP [2000] 3 IR 480, I said at p.521:
“I believe that the sole issue in these proceedings is whether there is a real risk that the applicant will not receive a fair trial, that is whether in all the circumstances including, principally, the lapse of time there is a risk that these allegations cannot fairly and safely be prosecuted”.
H. v. DPP in context.
6. The approach mandated at as a result of the decision in H. must be seen against the background of two earlier and very significant developments in procedural justice. The first relates to delay, and the second to the special position of persons alleging that they were sexually abused as children.
7. The Courts have always been sensitive to the fact that a long delay in litigating, whether the case is civil or criminal, can gravely interfere with the prospects of being able to do justice in the particular case. Examples of this concern could be cited from a very remote period but, perhaps due to an increase in the volume of litigation and of litigants consciousness of the potential for legal action, this problem seems to have become acute in Ireland from the 1970s onwards. In my judgment in JO’C v. DPP [2000] 3 IR 480 I surveyed a considerable number of cases from that period. Having referred to this survey, it is unnecessary to repeat it here. I would instance, by way of example, O’Keeffe v. Commissioners of Public Works (unreported, Supreme Court, 24th March, 1980) where an attempt to litigate an industrial accident case after 23 years was described as giving rise to “a parody of justice”. On the criminal side, a delay of four years in the prosecution of an assault case was described in this Court in O’Connell v. Fawcett [1986] IR as “extreme”. The disadvantages to defendants, civil or criminal, were fully acknowledged in this substantial line of jurisprudence and our courts endorsed an insight of Lord Diplock “The chances of the Court being able to find out what really happened are progressively reduced as time goes on.”
8. The second new departure dates at least from the judgment of Finlay C.J. in G. v. DPP [1994] 1 IR 347. This is based on a realisation that cases involving the alleged sexual abuse of young children may be long delayed by reason of inhibitions which may sometimes affect the making of a complaint, perhaps preventing it for a period of many years. The working out of the consequences, procedural and otherwise, of this insight and been the subject of a great deal of recent jurisprudence and that process of working out is not, in my view, yet complete. Its first stage was the bringing of prosecutions after periods of time which would have precluded prosecution had the complaint been of any other nature. This, in turn, led defendants to protest, sometimes with obvious truth, that they were hugely and unfairly disadvantaged in meeting such prosecutions. The proper approach for the Courts to take in dealing with such applications was first laid down in the very comprehensive judgments in P.C. v. DPP [1999] 2 IR 25. This approach has now been replaced by that mandated by the recent H. decision which lays down the test encapsulated in the citations already given.
9. I propose, first, to apply that test to the facts of the present case.
Applying the H. test.
10. The state of the evidence in this case appears to me to illustrate a common failing in applications of this sort. There has been an omission fully to engage with the facts and to put the case, in evidence, as far as it would have to be put to secure relief. I agree with the finding of Mrs. Justice Denham that this prosecution after so long a delay has caused a great deal of unnecessary stress and anxiety to the defendant. It appeared to be un-contradicted that he suffered an acute stress reaction after being interrogated (perhaps inconsiderately) by the gardaí, leading to his admission to hospital for a period of ten days. I am, however, bound to agree with Mrs. Justice Denham that this feature was simply not put far enough on the applicant’s evidence to justify granting him relief. There was talk during the District Court proceedings, and in the affidavits in these proceedings, of comprehensive medical reports from named specialist doctors, but they were simply not put before the Court.
11. I am far from belittling the stressing effect on a man of seventy, previously of good character, of the sudden production against him of allegations relating to a period up to half a lifetime ago. I am equally aware of the exacerbating effect, in terms of stress and anxiety, of the gradual realisation that, by reason of the lapse of time, there is little enough one can do to rebut these allegations except to deny them. The experience of anyone who has defended or prosecuted such cases leads to the conclusion that there is a practical necessity for the defendant to do more than that, positively to undermine the complainant’s account, but this will often be impossible or barely possible. The defendant’s position is a perilous one, even if he is entirely innocent.
12. However, as Mrs. Justice Denham observes, there is an element of stress and anxiety inherent in any criminal charge and its mere existence cannot be a ground for preventing a trial. There is an absence in this case, as in many other such cases, of evidence, carrying an allegation of unnecessary stress and anxiety beyond the level of generality and beyond the time of the 1996 hospitalisation. Just how stressful is a criminal trial, compared with other well known stressors? What, if any, is the exacerbating effect of a defendant’s age and state of general health, or of the particular difficulties which beset the defence of an old allegation? In what circumstances, if any, can the stress and anxiety prejudice the defence by undermining the capacity, or the affect, of the defendant? These are all factors wholly unexplored in general or on the particular facts of this case. It is by reason of this lack of specificity, lack of engagement to the actual facts, that I would refuse relief.
13. I do not consider that the arguments advanced on behalf of the defendant and based on the jurisprudence of the European Court of Human Rights, has any relevance in the circumstances of this case. I wish, therefore, to reserve my opinion on the effect of that jurisprudence in a case of this sort until a case arises where this material is of direct relevance.
Difficulties of old cases.
14. I wish to add certain observations which are naturally, in the context of this case, obiter. I believe it is appropriate to state (and in some instances to restate) certain matters now, at the beginning of the new dispensation in dealing with old cases. It is perhaps easier to do so in this case where it is appropriate to refuse to restrain the trial of the offence.
15. Firstly, I entirely agree with what is stated by Mrs. Justice Denham in her judgment in this case:
“Of course the issue of delay will be a matter of importance for the trial judge. The fact that an application for a prohibition has not succeeded does not dispense a judge from his constitutional duty to ensure due process in the trial. By its very nature the delay in this case will be a matter for a trial judge to consider and address from several aspects.
As I stated in DPP v. O’C. [2006] IESC 54:
‘whether an application for judicial review is made or not, the trial court retains at all time its inherent and constitutional duty to ensure that there is due process and a fair trial. Thus, in the course of the trial matters may arise, evidence may be given, which renders a trial unfair, or the process unfair. In these circumstances the trial judge retains the jurisdiction of preventing the trial from proceeding. This jurisdiction is exercised in the course of a trial but does not enable, or relate to, a preliminary hearing at the commencement of a trial on the issue of delay.’ ”
16. The jurisdiction of the trial judge will, of course, be exercised on the case as it develops before him. It may take the form of preventing the trial from proceeding, or of appropriate warnings or cautions to the jury about the case as a whole or about special aspects of it. It appears to me that this jurisdiction must be exercised in the light of a realisation that a trial of a very old case has inherently dangerous aspects to it: memories fade, witnesses or potential witnesses die or become unavailable, the allegations in themselves tend to lack specificity and the capacity to contradict a complainant on specific details may have been wholly lost due to these things, either one of them alone or in combination. It must also be borne in mind, as illustrated in cases such as DPP v. F. (unreported, Court of Criminal Appeal, 2nd December, 1996) and DPP v. B.J. [2003] 4 IR 525, and DPP v. N.W. (unreported, Court of Criminal Appeal, 16th December, 2005) that immensely damaging failures of memory may take place, even in trained and professional people, in periods of time which are, compared to some of the delays the Courts have become used to, very short.
17. In this connection I wish to repeat what I said in J.O’C, at p.504:
“If a defendant who is innocent is exposed to a trial where the only evidence is unsupported assertion and the only defence bare denial, his position is indeed perilous. Where these cases have been successfully defended, it has, in my experience, always been because it has been possible to show that the complainant’s account is inconsistent with objectively provable facts relevant to the allegation, or that the complainant has made other allegations against other people which are lacking in credibility”.
18. There are certain issues of principle which, it seems to me, the Courts will have to address sooner rather than later. We have gone down the road of permitting cases of this nature to be brought after a period of time which would be fatal to any other case. It is easy to say to a jury that a long delay may prejudice a defendant in any of the ways set out above, and in other ways. But what, precisely, is a jury to make of this? A very old criminal case, like any criminal case, requires to be proved to the criminal standard, and there is no question of a more exacting standard simply because it is very old. It will be true in almost every case, or at least reasonably possible, that a defendant would be in a better position to mount a defence if the case had been brought much earlier. Permitting the case to be brought after very long periods carries with an acceptance that there will be additional risks or difficulties in the defence of the case. The Courts are bound, as far as possible, to minimise those risks but there is to date little authority as to how this is to be done. Should there be a special warning? Should there be a corroboration warning in all old cases? If so, of what should it consist? Suppose it emerges at trial (not having been previously evident, in which case prohibition would presumably have been granted) that a defendant is specifically disadvantaged in some way, what is the appropriate response to that?
19. There are a number of cases, of which the most recent is DPP v. E.C. (unreported, Court of Criminal Appeal, May 29, 2006) which support the proposition that in sexual abuse cases, where there has been a lengthy delay, a warning to the jury of the dangers thereby arising should be given by the trial judge in the course of his summing up. The form of warning given by Judge Haugh (as he then was) in DPP v. R.B. (cited in judgment of the Court of Criminal Appeal, 12th February, 2003) was again approved in that case, but this form of warning seems to me to stop short at pointing out the dangers, but refrains from telling the jury how they should act on them.
20. It is in my view essential that this specific question be addressed: how, precisely, should a jury approach a case in which there is a real chance that the defendant would have been in a better position to meet the allegation had it been made shortly after the offence was alleged to have taken place?
21. The best known of the warnings which a judge must give to a jury is that relating to visual identification, set out in People v. Casey (No. 2) [1963] IR 33. The terms of this warning are too well known to set out here. Having been in many cases where a Casey warning was given, I have no doubt that its force principally derives from the statement of the Courts’ experience of actual cases: “in a number of instances such identification has proved erroneous”; “experience has shown that mistakes can occur where two or more witnesses have made positive identifications”; “there have been a number of instances where responsible witnesses, whose honesty was not in question and its opportunities for observation had been adequate, made positive identification on a parade or otherwise, which identifications were subsequently proved to be erroneous”.
22. There have been a number of cases, in the area of the law now under discussion, where very alarming effects even of relatively short periods of delay have come to the attention of the Courts. I have in mind cases such as DPP v. F. (unreported, Court of Criminal Appeal, 2nd December, 1996); B.J. v. DPP [2003] 4 IR 525 and DPP v. N.W. (Court of Criminal Appeal, unreported, 16th December, 2005). I have discussed these cases in detail in previous judgments. In my view consideration will have to be given, in an appropriate case, to whether these and other profoundly disturbing cases should form the basis of a specific warning, perhaps along Casey lines, to be given in cases of this sort.
Investigative and procedural aspects.
23. The task of ensuring the fair trial of old allegations is not exclusively one for the Courts. A heavy responsibility seems to me to devolve on the prosecuting authorities. It appears to me essential that a full record be made, by video taping or otherwise, of the allegation as originally made by the complainant and of any altered, additional, or supplementary allegation. This is so that one can see whether the allegation has been consistent throughout in content and context. Moreover it seems to me essential that a full investigation be made of the circumstances of the allegation with a view to isolating “islands of fact” as that phrase has been used in earlier cases. If it has not proved possible to isolate such factual aspects, that should be clearly stated.
24. It also occurs to me that a defendant may be needlessly prejudiced by the absence of any provision, in criminal cases, for discovery or something closely analogous to it. Nor is there in this jurisdiction a firm protocol for disclosure. This, in my opinion, us a considerable anomaly. It may be noted that in Minister for Justice v. Stapleton (High Court, unreported, 23rd November, 2005), discovery was held to be available (though not ordered on the facts of that case) to a person sought by another country on foot of a European Arrest Warrant. The Court (Peart J.) in that case cited recital 13 of the Framework Decision relating to the new surrender arrangements, recital 13:
“This Framework Decision does not prevent a member State for applying its constitutional rules relating to due process”.
25. The Court went on to hold that the reference to due process enabled a respondent to pursue an application for discovery.
Conclusion.
26. The prospect of the trial of very old cases, to my mind, presents the Courts with an acute dilemma. On the one hand, it has been decided that (except perhaps in an extreme case) mere delay in making a complaint will not in and of itself be a ground to prohibit a trial. On the other hand it is long established that, in the words of Denham J. in B. v. DPP [1997] 3 IR 140:
“The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If there is a real risk that the applicant would not receive a fair trial then, on the balance of these constitutional rights, the applicant’s right would prevail”.
27. A similar conclusion had been reached by Finlay C.J. in The State (O’Connell) v. Fawsitt, cited above:
“A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before a jury”.
28. One must also, particularly since the incorporation of the European Convention of Human Rights and Fundamental Freedoms into our law, bear in mind the provisions of Article 6(1) of that instrument:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law”.
29. The challenge for the Courts is to implement these rights of an accused person without nullifying or rendering meaningless the proposition that, in general, delay in making a complaint of this sort will not in and of itself preclude the initiation of a prosecution. It seems to me that in some cases it may not be possible to preserve both rights, and in that event the fair trial rights must prevail. But the truth or otherwise of this impression can only be worked out over time and in individual cases.