BETWEEN
DECISION of Mr. Justice Eagar delivered on the 10th day of February, 2016

1. The Court ruled that the remaining indictment (there having been a first trial) should be severed and that the trial in respect of the complainant, T.C., should proceed before the jury.

2. Mr. Devalley S.C., counsel for the prosecution, indicated that there was an issue which had to be considered in relation to the dates of the indictment, and averted to the possibility that the Court may have the responsibility to marry the counts on the indictment with the evidence, and further, that it may be necessary to amend the indictment.

3. Counsel for the prosecution outlined the background to the prosecution. Complaints were made against the accused in 2004. The statements of a number of the key witnesses were taken, in and around the early months of 2004. The complainant T.C. made a statement on 11th March, 2004, a subsequent statement on the 23rd August, 2004 and a further statement of evidence on 10th September, 2004.

4. The accused man was arrested and detained at Milford Garda Station on 21st December, 2004 and released pending the directions of the Director of Public Prosecutions. It is common case that he left the jurisdiction at that time and the prosecution indicate that he was located in the United Kingdom in 2013.

5. A European Arrest Warrant was prepared in relation to a large number of complaints, relating to offences at 21 – 24 in the European Arrest Warrant. The Director of Public Prosecutions directed that the accused, C.C., be charged with four offences:

“21. On a date unknown between the 1st January, 1974 and the 31st December, 1974 (both dates inclusive) at Drumcliffe, Ennis, Co. Clare, the requested person did commit an act of indecent assault upon [T.C.].

22. On a date unknown between the 1st September, 1973 and the 30th September, 1973 (both dates inclusive) at Lisdoonvarna, Co. Clare, the requested person did commit an act of indecent assault upon [T.C.].

23. On a date unknown between the 1st January, 1974 and the 31st December, 1974 (both dates inclusive) at Seán O’Farrell’s shop, Mill Road, Ennis, Co. Clare, the requested person did commit an act of indecent assault upon [T.C.].

24. On a date unknown between the 1st January, 1974 and the 31st December, 1974 (both dates inclusive) at Seán O’Farrell’s shop, Mill Road, Ennis, Co. Clare, the requested person did commit an act of indecent assault upon [T.C.] (on an occasion other than that stated in the Offence No. 23).

6. C.C., the accused, did not contest the application for his rendition and he was subsequently charged with these offences among other offences.

7. It was common case that there had been an earlier trial in relation to other charges contained in the original indictment.

8. It is also of note that in the European Arrest Warrant, information was given in relation to the allegation made by T.C., that his father had sexually abused him “over a number of years”. It is also noteworthy that the information records that whilst travelling home in the van and whilst driving, the requested person would grope T.C. On certain trips T.C. would be raped and made to perform oral sex on the requested person. In the 1970s, the requested person opened up a chipper in Ennis, Ireland. T.C. worked full time for him and stayed in a bedroom upstairs at night. During the night T.C. would have to get up to go to the toilet which was outside the back of the house. T.C. would sneak up the stairs as quietly as possible. He would only just be in bed when he would hear the floorboards creaking and the requested person would arrive into his room. The requested person would rape him and then force him to perform oral sex on him. Prior to raping him, he often gagged him with a sponge and tie around his mouth so that he could not make noise. T.C. would cry from the pain of the anal penetration. In no point in the information given in relation to these allegations is a date specified.

9. Because C.C. was rendered to Ireland, counsel for the prosecution said, issues arose as to the interpretation to be put on Article 27, contained within the Framework Decision of the 13th June, 2002 in relation to European Arrest Warrants. Article 27 deals with possible prosecution for further offences, namely the rule of specialty. Article 27 (2) states that “a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.”

10. In Irish national law the Court can act to amend the indictment or to permit the prosecution to amend the indictment provided it is in accordance with Section 6 of the Criminal Justice (Administration) Act 1924, unless the Court finds that the required amendments would result in injustice to the accused.

11. Counsel for the prosecution quoted from the decision of Leymann and Pustovarov (Case T-388/08) [2008] E.C.R. I-08993, a decision of the Third Chamber of the European Court of Justice which dealt with the interpretation of Article 27 (2). In that case Mr. Pustarov had been charged with possession of, according to the European Arrest Warrant, large quantities of hashish when in fact he had been involved in importation of amphetamines. The Supreme Court raised a number of questions for a preliminary ruling. In the first question raised the Court stated at para. 41:

“By its first question the referring Court asks, essentially, what the decisive criteria are which would enable it to determine whether the person surrendered is being prosecuted for an “offence other” than that for which he was surrendered within the meaning of Article 27 (2) of the Framework Decision.”

At para. 42 the Court said:

“It is clear from Article 1(1) and (2) of the Framework Decision and from recitals 5, 6, 7 and 11 in its preamble that the purpose of the Framework Decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings based on the principle of mutual recognition.”

Para. 43 states:

“Article 27(2) of the Framework Decision lays down the specialty rule, according to which a person who has been surrendered may not be prosecuted, sentenced or otherwise deprived of liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.”

Para. 44 continued:

“That rule is linked to the sovereignty of the executing Member State and confers on the person requested the right not to be prosecuted, sentenced or otherwise deprived of liberty except for the offence for which he or she was surrendered.”

At para. 52, the Court said:

“In order to decide on surrender of the person requested for the purposes of prosecution of an offence defined by the national law applicable in the issuing Member State, the judicial authority of the executing Member State, acting on the basis of Article 2 of the Framework Decision, will examine the description of the offence in the European arrest warrant. That description must, in accordance with the form in the annex to the Framework Decision, contain the information referred to in Article 8 of the Framework Decision, that is, inter alia, the nature and legal classification of the offence (in this case an offence of indecent assault), a description of the circumstances in which the offence was committed (which is included in the application for the extradition), including the time, place and degree of participation in the offence by the requested person, and the prescribed scale of penalties for the offence.”

At para. 57, the Court said:

“In order to establish whether what is at issue is an ‘offence other’ than that for which the person was surrendered, it is necessary to ascertain whether the constituent elements of the offence, according to the legal description given by the issuing State, are those for which the person was surrendered and whether there is a sufficient correspondence between the information given in the arrest warrant and that contained in the later procedural document. Modifications concerning the time or place of the offence are allowed, in so far as they derive from evidence gathered in the course of the proceedings conducted in the issuing State concerning the conduct described in the arrest warrant, do not alter the nature of the offence and do not lead to grounds for non-execution under Articles 3 and 4 of the Framework Decision.”

12. Counsel for the prosecution makes the point that all that is being sought is an amendment in relation to the time of the offence, and that this falls in complete accord with the decision in Leymann and Pustovarov (Case T-388/08) [2008] E.C.R. I-08993.

13. The Court continued at para. 38:

“It is for the national court having jurisdiction to ascertain, in the light of the criteria referred to in the preceding paragraph, whether the offence described in the indictment constitutes an offence other than that described in the arrest warrants issued in respect of Mr Leymann and Mr Pustovarov.”

14. It appears clear that first of all there is very little material available regarding dates in the application for the extradition. There are specific dates contained in the indictment. It appears that as a result of the issues in the first trial in relation to time, which were partly raised, that the accused man was not residing in Ennis in 1974. This is also of course known to the accused man. The statement of T.C. made on the 23rd August, 2004 refers to a woman by the name of B.B. who had a son. It appears that the son was born in or around June, 1977. It was therefore likely that the complainant was babysitting him nine months later, sometime in 1978. In light of these indicia of time, counsel for the prosecution states that T.C.’s naming of dates was wrong, and would amend the dates of at least three of the offences to reflect these events. Counsel for the prosecution states that the Court could enable the amendment to be made as not being a breach of the rule of specialty.

15. In reply, Mr Delaney S.C., counsel for the defence, says that the suggested amendments will change the dates of alleged offences by up to five or six years. He also states that it is quite clear that the accused man was living in England in 1974, and was married to a S.S. Counsel for the defence said that there were two aspects to consider in the terms of the application, one was the rule of specialty and article 27 of the Framework Decision; the second was the Court’s power of amendment under s. 6 of the 1924 Act and whether this would result in injustice to the accused. He quoted para. 53 of the judgment in Leymann and Pustovarov (Case T-388/08) [2008] E.C.R. I-08993:

“It is therefore possible that, in the course of the proceedings, the description of the offence no longer corresponds in all respects to the original description. The evidence which has been gathered can lead to a clarification or even a modification of the constituent elements of the offence which initially justified the issue of the European arrest warrant. A surrender request must be based on the information and it is possible that description no longer corresponds to the original description.”

16. In relation to section 6, the time at which the offences are deemed to have occurred is relevant. These ramifications can be far more wide-ranging, than there being a change in the identity of a particular controlled drug. The National Court is required to ask itself, pursuant to para. 57 of the judgment, is there a sufficient correspondence between the EAW and the procedural document? Counsel for the defence argues that manifestly this is more than a mere modification. He states that there is no correspondence whatsoever between the old and new on the issue of time. He argues that this amendment is outside the scope of the Leymann decision, and to amend here would offend the rule of specialty.

17. He then referred to s. 6 of the 1924 Act and he said that an amendment could result in a real injustice to the accused man, and that the accused’s legal advisors prior to this, had focused on the question of establishing that he could not have committed these offences, as he was not in the jurisdiction in 1974. The prosecution, at the strike of a pen, were seeking to set that at nought. He referred to the Court requiring to give the jury a specific warning in relation to delay in the case. In this case the accused man was going to mount a defence saying “I wasn’t here at the time” but counsel for the defence argues that the accused man has had the rug pulled out from under him because of the change of dates which was only notified yesterday. Counsel for the defence then suggested that to grant the amendments sought by the prosecution would breach the accused’s right to fair procedures.

18. In reply, counsel for the prosecution argues that the decision in Leymann and Pustovarov (Case T-388/08) [2008] E.C.R. I-08993 allowed for clarification as to the elements of the offence. The elements of the offence, be it sexual assault of an indecent variety, could be modified as to the terms of the offence, and it would still pass the test in Leymann and Pustovarov. Differences as to time and place are allowable and are to be treated differently to the elements of the offence.

19. The other issue that counsel for the prosecution raised was the issue of the age of the complainant as he tries to recollect his childhood. He also referred to the decision of the Court of Criminal Appeal in the case of DPP v. Michael Anthony Walsh [2010] 4 IR 746. In a similar case, Professor Dermot Walsh, in his well known work, Criminal Procedure (Dublin, 2002) observed:

“So long as it will not cause injustice to the accused an amendment may be made at any stage of a trial, whether before or after indictment.”

20. Counsel for the prosecution did point out that the Court had not heard the evidence and that the prejudice is a legal prejudice. No alibi evidence has been received by the State and Court should hear the evidence in case, to see if there is a disability to proceed.

21. This Court has considered the judgment of the Supreme Court of Justice and it is quite clear from that decision that the amendments suggested that might arise here, in relation to the indictment come within the terms of para. 57 of the Court’s judgment. The modification that is suggested is purely that of time and, taken in the context of a person recollecting his childhood whilst making a complaint, such an amendment does not breach the rule of specialty. The jurisprudence of the Irish Courts in relation to complaints made by adults in relation to offences that were alleged to have been committed when they were children has developed from the decision in B. v. D.P.P. [1997] 2 I.L.R.M. 118, in the context of attempts to prohibit these offences. Most of these judgments were considered in the Supreme Court in H v D.P.P. [2006] 3 I.R. 575. The Court stated that:

“The Court’s experience extends to a broader set of issues and has found that there is a range of circumstances extending beyond dominion or psychological consequences flowing directly from the abuse which militate or inhibit victims from bringing complaints of sexual abuse to the notice of other persons, in particular those outside their family, and even more particularly the Gardaí with a view to a possible trial. Over the last decade, the Courts have had extensive experience of cases where complaints are made of alleged sexual abuse which is stated to have taken place many, many years ago. At issue in each case is the constitutional right to a fair trial. The Court has found that in reality the core inquiry is not so much the reason for delay in making a complaint by a complainant but rather whether the accused will receive a fair trial, or whether there is a real or serious risk of an unfair trial.

The Court approaches such cases with knowledge incrementally assimilated over the last decade in some of which different views were expressed as to how these issues should be approached. In such cases when the information was presented concerning the reasons for the delay it was invariably a preliminary point to the ultimate and critical issue as to whether the accused could obtain a fair trial.”

22. In B. v. D.P.P. [1997] 2 I.L.R.M. 118 the test was described as:

“The test is whether there is a real risk that the applicant, by reason of the delay, would not obtain a fair trial, that the trial would be unfair as a consequence of the delay. The test must be applied in the light of the circumstances of the case and the law. The extant case on the constitutional right to a reasonable expedition as developed applies to this case. However, in addition, there must be an analysis of new factors and the new factors referred to became issues such as dominion, inhibition, disparity between the ages of the accused and the complaint.”

23. This Court is of the view that this jurisprudence is of relevance in assessing whether or not there is a real risk of prejudice and, in the view of the Court, the decision of the Court of Criminal Appeal in D.P.P. v. Michael Anthony Walsh [2010] 4 IR 746 is sufficient for this Court to rule that the required amendments can be made without injustice to the accused.