A Supreme Court judge has said the courts will have to consider "sooner rather than later" whether specific warnings should be issued to juries about the effects of long delays in making complaints of child sexual abuse.
Mr Justice Adrian Hardiman made the remark when holding that the trial of a retired garda on charges of indecent assault against four of his nieces could proceed. He also said it was essential that a full record be made, "by video taping or otherwise", of the allegation of abuse as originally made.
Any altered or supplementary allegation should also be fully recorded, he said. This was so juries could decide whether the allegations were consistent throughout in content and context. It was also essential to have a full investigation of the circumstances of the allegation to isolate "islands of fact". It was a "considerable anomaly" that there was no firm protocol for disclosure of relevant material in such cases.
Such child sex delay cases presented the courts with "an acute dilemma", Mr Justice Hardiman said, because, while it had been decided except in extreme cases that mere delay alone was not enough to prevent a trial, it was also long established that a person's right to a fair trail was greater than the community's right to have offences prosecuted.
The courts also had to bear in mind the provisions of the European Convention on Human Rights relating to the right to a trial within "a reasonable time".
The challenge for the courts was to implement the right of an accused without rendering meaningless the proposition that, in general, delay would not of itself preclude the initiation of a prosecution. In some cases, it might not be possible to preserve both rights and the right to a fair trial must prevail.
Mr Justice Hardiman made the remarks when agreeing with a decision by the court, delivered by Ms Justice Susan Denham and also agreed with by Ms Justice Fidelma Macken, refusing an attempt by a retired garda to halt his trial on charges of indecent assault of four of his nieces.
The court did, however, prohibit the man's trial on similar charges against a fifth niece.
The alleged offences relate to dates between 1971 and 1987 and the man had claimed that the delay in making the complaints against him and in the bringing of criminal proceedings had pre-judiced his right to a fair trial. The first formal complaint was made against him in September 1996 and he was returned for trial in June 2000.
The hearing of the man's appeal before the Supreme Court was adjourned to await the outcome of that court's review of jurisprudence in child sex delay cases - where there has been an accusation of child sex abuse and a significant delay between the alleged abuse, the complaint and the bringing of charges.
In a significant judgment last July in the H case, the Supreme Court ruled that in general, there was no need to hold an inquiry into or to establish the reason for the delay in making a complaint. It ruled that the test to be applied in such cases was whether the delay had so prejudiced the accused that it created a real or serious risk of an unfair trial.
In light of that test, the Supreme Court heard submissions on the retired garda's case and gave its unanimous decision yesterday, upholding a High Court decision that the trial should proceed relating to four nieces but halted against a fifth.
In her judgment, Ms Justice Denham disagreed with arguments on behalf of the man that this was an exceptional case to which the H decision did not apply. While there was a very lengthy delay in the case, it was not unusual in such cases and the court had judicial knowledge of the reasons for delays in making such complaints.
She stressed that that did not preclude the trial judge from considering issues relating to delay at the time of trial. She also held he had also not established blameworthy prosecutorial delay.
