The factual background to these judicial review proceedings, the evidence in the High Court and the findings of the High Court judge have all been helpfully and succinctly set out by Hardiman J. in his judgment which I have had the advantage of reading. There is no need to reiterate these matters here.

The learned High Court judge having carefully surveyed the evidence before him, made certain findings of fact in regard to that evidence. He considered the delay which had occurred between the occurrence of the alleged incidents in September/October 1989 and the complainant’s first statement to the Gardai in April 1998. In regard to this period of what is frequently termed “complainant delay” the trial judge held that at least from April/May 1995 onwards the complainant was “free of any inhibiting forces, arising from these events, which might have had a continuing prohibitive effect on the making of a complaint to the appropriate authorities” (judgment page 33).

The learned trial judge also considered the period of delay which occurred between the complainant’s first statement on 9th April 1998 and 3rd March 2000 when the applicant was charged and brought before the District Court, a period of almost two years. McKechnie J. held that this period was excessive and, either by itself or as a compounding factor, would be a ground for granting the relief sought by the applicant.

McKechnie J., however, rejected the various grounds of specific prejudice put forward by the applicant (to which I shall refer later) and held that, despite the delay factor, the applicant could still have a fair trial. He concluded:

“I am therefore granting this relief, on the basis that in my view, the delay above identified constitutes a breach of the applicant’s right to a trial with reasonable expedition. Such a right in my opinion can exist independently of any other rights attaching to a trial in due course of law. If however I am wrong in this and the true issue is whether or not such a trial, in accordance with Article 38, could be afforded the applicant, it would be my concluded view even now, that it could.”

In recent years a considerable number of cases have come before the High Court and this Court where accused persons have been charged with sexual offences involving children and young persons in circumstances where complaint about the offences in question was not made until many years after the alleged offence. In comparatively few of these cases the Court has held that in addition there has been improper delay on the part of the prosecution authorities.

In Hogan v President of the Circuit Court [1994] 2 IR 513 (at 521) Finlay C.J. in reference to cases where delay had occurred said:-

“Obviously, in any case where the prosecuting authorities on the information available to them have not got proper grounds for charging any person with an offence, their failure to do so and elapse of time before they are in a position to do so cannot give to an accused a right to prohibit a trial on the basis of the defeat of his constitutional right to an expeditious trial. For example, cases consisting of charges by very young children in regard to assaults on them at an age which are not brought to the attention of the authorities by such children until very many years after they occurred involve wholly different considerations from those applicable to the present case.”

“Manifestly, in cases where the Court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the Court will be whether it has been established that there is a real and serious risk of an unfair trial; that after all is what is meant by the guarantee of a trial ‘in due course of law’. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of an accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the reasons for the delay, and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the Court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused’s own actions.

If that stage has been reached, the final issue to be determined will be whether the degree to which the accused’s ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the Court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial.”

In the written submissions filed by the Director in the present appeal it became clear that the Director would seek to argue that, in relation to a case where delay on the part of a complainant had occurred, a prosecution could be restrained only if a real risk of an unfair trial could be demonstrated by the accused. This appeared to involve asking this Court not to follow P.C. v DPP, in particular insofar as that judgment held that delay alone might lead to the trial not being allowed to proceed even where it had not been demonstrated “that the capacity of an accused to defend himself or herself will be impaired”.

As a result of these submissions by the Director, as pointed out by Mr Justice Hardiman in his judgment, this Court permitted the late filing of a cross-appeal by the applicant. This cross-appeal challenged the finding of the learned trial judge that in the circumstances of the case the applicant would not be prejudiced and that he could receive a fair trial.

The written submissions made on behalf of the Director, which were ably and comprehensively set out in oral argument before this Court by Mc McDonagh both in the present and in the earlier case of D.W. v DPP (Supreme Court 31st October 2003) are far-reaching in their proposed effect. On first consideration it would appear that such an approach must involve this Court overturning the decision in P.C. v DPP at least insofar as it permits the restraining of a prosecution on grounds of delay alone. This would indeed be a radical step in the case of a relatively recent decision which has been much followed. That is not to say, of course, that Mr McDonagh’s carefully reasoned arguments should not be considered by this Court. In my view, however, the somewhat unusual facts of the present case, for reasons to which I shall refer later, do not lend themselves to a satisfactory analysis, in context, of Mr McDonagh’s major submission.

It is also clear that in the event of the applicant’s cross-appeal succeeding the Director’s challenge to the eventual decision of the learned trial judge that the prosecution should be restrained on the ground of delay alone would no longer be relevant. It seems, therefore, that the correct course to follow would be to deal in the first place with the applicant’s cross-appeal.

The grounds of the applicant’s cross-appeal are as follows:

“1. That the learned trial judge erred in fact and in law in holding that the applicant/respondent could have a fair trial on the criminal charges the subject matter of this application.

2. That the learned trial court judge erred in law and in fact in failing to consider or to attach the appropriate weight to the issues of prejudice which arose in the course of cross-examination of witnesses and in particular, his finding that the Sergeant’s memory was defective with regard to the interview found to have taken place in 1990 in respect of the complainant.

3. That the learned High Court judge erred in law in failing to consider the issue of presumptive prejudice.

4. That the learned High Court judge erred in law and in fact in failing to attach appropriate weight to the delay on the part of the prosecuting authorities in investigating and prosecuting the alleged offences from May 1990 when they first interviewed the applicant/respondent herein and representations made to the applicant/respondent by the Sergeant thereafter.

5. That the learned High Court judge erred in law in failing to consider all the circumstances of the case for the purpose of determining whether there was a real risk of an unfair trial of the applicant/respondent”.

The scenario in the present case is different in almost every respect. The complainant was sixteen years of age when the alleged incidents took place; it is likely that a sixteen year old in 1989 had some degree of knowledge of the world. She was able to tell her mother about the first incident very soon after it occurred although she apparently did not tell her of the alleged rape. It appears that at early stage after her daughter’s complaint the mother made some contact with the Garda Siochana in the person of the local Sergeant. Whatever that contact was – and we know very little about it – it caused the Sergeant to interview first the applicant and subsequently the applicant and his wife together. It was found as a fact by the learned trial judge that it was then conveyed by the Sergeant to the applicant that he would hear nothing further about the matter. On account of the lapse of time the applicant cannot recall the detail of these meetings. From the course that the evidence of the Sergeant took in the High Court it is abundantly clear that his memory of these matters has also faded. Whatever may have happened in regard to this Garda inquiry, it is in stark contrast to the complete lack of early complaint which features in other cases.

There is no evidence whatever of dominance by the applicant in this case. He held no position of authority and had no family relationship with the complainant. Even his acquaintance with the complainant appears to have ceased very shortly after the alleged incidents and she has spent the greater part of the intervening years in England. In addition the learned trial judge has made a finding that the complainant was not in any way inhibited from making a complaint after the spring of 1995, yet she took no action until April 1998. Even then she appears not to have been particularly anxious to facilitate the Gardai in obtaining a further statement from her for the purposes of clarification.

This Court is thus left with the position that the alleged incidents occurred some ten and a half years before the applicant was charged and where the learned trial judge has held that there was three years unexplained delay by the complainant, followed by an excessively long prosecutorial delay between complaint and eventual charge.

In the High Court the applicant relied on three grounds of specific prejudice, which are listed at paragraph 5(g) of the trial judge’s judgment as follows:-

“The prejudice claim has been formulated in the following way: firstly H.McC. alleges that the incident in September 1989 was interrupted by the applicant’s son (who was nine at the time) coming into the kitchen of the family home. Accordingly his son’s recollection would have been of value but only if he had been asked to recall at a much earlier stage than December 1998 or March 2000; secondly that up to November/December 1999 his wife would have been supportive of him in his defence of any prosecution but since then, because of matrimonial difficulties, their relationship, now acrimonious, has deteriorated to a point where he has no confidence that any evidence, much less supportive evidence will be forthcoming from her. In particular he claims that his wife’s recollection of H.McC. coming invited and uninvited, as the case may be, to their home in the relevant period would be pertinent as would be her own whereabouts on the occasions in question. Mr J. states that her recollection of what led to the applicant to driving H.McC. home on the dates in question would be material, he being of the view that H.McC’s request for a lift home would be supported by his wife. Thirdly, it is either expressly or impliedly claimed that the jeep which was used in October 1989 had central locking and was owned by a friend of the applicant. The jeep according to Mr Jackson was his own and had no system of central locking but, having been disposed of it in 1990, it is not now available as evidence to rebut this suggestion, and finally he alleges that the recollection of the complainant’s mother would be of assistance in describing the demeanour of her daughter at or about the relevant time.”

“Finally it has also been submitted that this trial should be prohibited on the grounds of express or specific prejudice consisting of the matters referred to at paragraph 5(e) and (g) of this judgment. In my opinion there is no basis for this claim…..Secondly, since the jeep in question was disposed of in or about that time, any examination of that vehicle, to offer evidential value, would have had to be carried out at that time or shortly thereafter. Hence charges would have had to be preferred at that stage. Thirdly, I cannot accept that a nine year old child walking disinterestingly (sic.) into a kitchen would have been conscious of any interaction between the complainant and his father. Fourthly, even though quite evidently it would have been more preferable from the applicant’s point of view, if his wife was positively disposed towards him, nevertheless I cannot assume any person including Mrs. J. under oath, would do otherwise than to tell the truth. And lastly I do not believe that questioning Mrs C. McC. about the demeanour of her daughter in late 1989, would have obtained for the applicant such probative evidence as without it, would constitute prejudice. Therefore I would refuse any relief under this heading”.

In this context I would agree with the learned trial judge on the subject of the nine year old son and on the subject of the complainant’s mother but in my view somewhat more weight could be given to the question of the locking mechanism of the jeep. Even if the jeep itself had been disposed of, an earlier trial would at least have offered the possibility of checking the locking system of that particular model of vehicle, evidence which is most unlikely to be available after a lapse of ten years.

As far as the possible evidence of the applicant’s wife is concerned, it seems to me that the major difficulty is not so much her likely change of attitude as the fact that after so long a lapse of time her memory, too, will have faded. In particular at this stage she is no more likely to recall the details of the various interviews than is the applicant or, more strikingly, than is the Sergeant. Similarly she is unlikely to remember the detail of the complainant’s visits to the J. home.

Senior counsel for the applicant in his submissions, however, laid much greater emphasis on the difficulty caused by what emerged in the evidence in cross-examination of the Sergeant. While counsel for the prosecution pointed out that the Sergeant would not be a witness at the actual trial, Mr Hartnett emphasised that the learned trial judge had held as a matter of fact that some type of assurance that the earlier inquiry would go no further has been given by the Sergeant to the applicant. To know the reason that such an assurance had been given was a crucial matter for the defence. There was a wide range of possible reasons, ranging from a doubt as to the credibility of the complainant (or of her mother) to some factor either in the investigatory systems or in the personal attitudes of the relevant Gardai. Whatever the reason was, it could not now be ascertained either by the applicant or by anyone else. It would be only at enormous risk to the applicant that the defence could endeavour to introduce any of this evidence before a jury at the applicant’s proposed trial. Thus a potentially effective defence was being denied to the applicant. He would clearly be prejudiced.

The general and particular prejudice likely to be suffered by an accused person has been well described in some detail by Hardiman J. in his judgment in J.O’C . v DPP [2003] 3 IR 478. In my view the applicant in the present case will suffer both the particular prejudice outlined above and the general prejudice caused by lengthy delay in itself.

I would allow the cross-appeal. It is therefore unnecessary to consider the grounds argued by the Director in his appeal.

I would accordingly dismiss the appeal and affirm the order of the learned High Court judge.