[2024]_IESC_48_ — [2024]_IESC_48_ — Ireland courts

An Chúirt Uachtarach

The Supreme Court

Dunne J Charleton J O’Malley J Collins J Donnelly J

Supreme Court appeal number: S:AP:IE:2023:000125 [2024] IESC 48 Court of Appeal record number: 2022/0134 [2023] IECA 179 High Court record number: 2019/299JR [2022] IEHC 229 Dublin Circuit Criminal Court bill number: DUDP 40417

Between

WC Applicant/Appellant

- and -

The Director of Public Prosecutions Respondent

Judgment of Mr Justice Peter Charleton delivered on Thursday 24 October 2024

1. Can judicial review in the High Court be used to prevent a criminal trial on the ground of supposedly inadequate disclosure of background to an allegation of sexual violence? Is this issue, of what and how much disclosure to order, the responsibility alone of the judge who hears that trial? How is disclosure, increasingly being sought as to private, intimate and historical records, including therapeutic notes, to be approached by trial judges?

2. These issues arise from a request for disclosure by WC, who is a man accused of a series of historic allegations of sexual violence. The complainant has already given extensive background information and documents. Asked by the accused for yet more information, at a certain point, she declined further cooperation. These circumstances require focus on how extensively, and intrusively, a court may require disclosure of the personal, medical and counselling records of those who assert themselves to be the victims of criminal offences. While those issues impact on many types of criminal trials, questions arise most especially in applications by accused persons to enquire into what a complainant, often under-age, has been noted to have said to others as to the commission of sexual violence. 3. Two considerations are central to what follows. Firstly, whether judicial review can lie on an accused applying to the High Court claiming that disclosure in a criminal case has been inadequate. Such an application is to stop a prosecution, thus completely removing the trial judge from control over the process of disclosure. On the basis of the analysis that follows, the control of disclosure, what is to be furnished to an accused and whether what has been disclosed suffices to enable a trial in due course of law, is a matter solely for the trial judge. It may also be noted that it is often the case that increased focus may falsely magnify the effect of a disclosure which is late. When disclosure is late, the effect of what is uncovered is not to unrealistically amplify the significance of what is newly revealed. Judges bear the same responsibility as during the trial, which is to adjudicate realistically whether what has been uncovered has had a real impact on the soundness of the trial process or on the safety of the conviction. Thus, secondly, it is necessary for this Court to offer general guidance on the proper approach to disclosure in criminal cases. As well as addressing this specific issue raised, this judgment necessarily should address relevance, any countervailing rights of a person complaining of a crime, and the limits on cross- examination.

Context

4. The essential context here is a sexual violence allegation. Particular rules thus apply. Prior to the reforms introduced by the Criminal Law (Rape) Act 1981, those with experience attending courts will recall that sexual violence prosecutions were unrestricted as to public access. For the central witness, testifying would always be a particular ordeal as she, would have to speak in public alleging an intimate, but violent or coerced, experience. Previously, at common law, evidence of the complainant’s sexual past was freely treated as relevant to the truth of an allegation and was thus treated as admissible. Hence, prior to the 1981 Act, enquiry by cross-examination on behalf of an accused about how a complainant had generally conducted herself in the past as to sexual relations not only with the accused but also with third parties was unrestricted. The only fetter on cross- examination was the imprecise requirement that questions for the accused should be put responsibly and should be on the accused’s instructions or should reasonably arise from the circumstances alleged on the prosecution case. Such an ill-defined standard ostensibly enabled, prior to this legislative intervention, intimate relations with others to become the focus of a cross-examination. This extended even as to asking if the complainant had any sexual experience prior to an incident, and could involve traversing the entire of any real or asserted relationship within which that occurred. That legal context has changed and that is a key element of a disclosure application. It would be wrong to order disclosure or to stop a trial because disclosure had not been forthcoming as to evidence that could never be adduced at trial or in respect of which a trial judge would not allow a complainant to be asked in cross examination. Discussion at trial of prior sexual experience is now circumscribed by law.

5. Section 3(1) of the 1981 Act has limited both evidence concerning and questions asked of a complainant in a sexual violence trial. This provides that: “no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than that accused.” Leave could be given, under s 3(2)(b), in that regard, by the trial judge if “and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question” to be asked “that is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.” That ruled out, save for good reason and with the leave of the judge, questions as to, and evidence about, the complainant’s sexual history vis-à-vis other people than the accused.

6. By s 13 of the Criminal Law (Rape)(Amendment) Act 1990 the restriction on evidence and cross-examination was tightened so as to focus on the allegation itself and to exclude evidence of any prior sexual encounter between the accused and the complainant. Prior sexual acts with the accused could be introduced only with the leave of the judge. Hence, s 3, as reformed by s 13, provides that “no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates) of a complainant with any person.” Furthermore, where a trial judge has granted leave for prior sexual experience evidence to be adduced or to be put to a complainant, under s 3(3), the judge may still exercise control over the ways in which the information is introduced at trial. Section 3(3) provides that where notwithstanding such leave has been granted, the trial judge “may direct that the question shall not be asked or, if asked, that it shall not be answered except in accordance with his leave given on a fresh application under this section”. The victim is represented for any debate in the absence of the jury as to whether such evidence may be adduced or question asked. Where leave is given by the trial judge, the victim is also represented for such evidence being adduced or question asked. The Criminal Law (Sexual Offences) and Human Trafficking Act 2024 amends ss 1, 4A, 5, 6, 7, 8, 9 of the 1981 Act. After s 4A(5) of the 1981 Act, these new subsections are inserted:

(5A) Where a judge has given leave in accordance with section 3 or 4 for any evidence to be adduced or any question to be asked, the complainant shall be entitled to be heard in relation to the evidence or the question and, for this purpose, to be legally represented during the adducing of that evidence or the asking of that question.

(5B) The prosecution shall, as soon as practicable after a judge has given leave in accordance with section 3 or 4 for any evidence to be adduced or any question to be asked, notify the complainant of his or her entitlement to be heard in relation to the evidence or the question and to be legally represented, for that purpose, during the adducing of that evidence or the asking of that question.

(5C) The judge shall not permit the said evidence to be adduced or the said question to be asked without first being satisfied that subsection (5B) has been complied with.

(5D) If the period between the complainant’s being notified, under subsection (5B), of his or her entitlements under subsection (5A) and the adducing of the said evidence or the asking of the said question is not, in the judge’s opinion, such as to have afforded the complainant a reasonable opportunity to arrange legal representation of the kind referred to in subsection (5A), the judge shall postpone the adducing of the evidence or the asking of the question (and, for this purpose, may adjourn the trial or proceeding concerned) for a period that the judge considers will afford the complainant such an opportunity. 7. The case law on the principle behind legislation illuminates the impact of these restrictions, recognising that “where a form of questioning is allowed, it should be confined only to what is strictly necessary and should never be utilised as a form of character assassination of a complainant”; The People (DPP) v GK [2006] IECCA 99, [2007] IR 02 [103-104]. A restrictive approach to admitting questions or evidence about a complainant’s prior sexual experience was also adopted by the Court of Appeal in The People (DPP) v D McD [2019] IECCA 99, [2007] 2 IR 92 [103-104]. Birmingham P, for the Court, described as “somewhat contrived and artificial” the idea that the complainant’s indication of her discomfort with situations of intimacy should open up the possibility of a “wide ranging, if not unlimited trawl” on cross-examination. In general, prior sexual experience has been rendered irrelevant, unless demonstrated as capable of rationally impacting on the decision of the jury. This legal context informs any discussion as to what should be disclosed as to a complainant’s sexual experience prior to trial.

8. Notwithstanding those statutory provisions and the strong endorsement in the case decisions of a focused approach to the deployment of such evidence or questions, pre-trial applications for disclosure have habitually sought to access counselling records, notes from psychotherapeutic sessions, accounts given to medical personnel, diary records and electronic messaging. Such records are sought based on an argument that if the accused is informed as to what a complainant told others as to sexual experience, either with the accused or with others, then an informed application to the trial judge under s 3 to put such matters to a complainant, or to call such evidence, may be made. Section 3 in the prohibition it clearly makes, and in putting a burden of demonstrating relevance as to any prior sexual experience on the accused, is central to dealing with disclosure applications. In addition, neither are the rights of a witness irrelevant.

9. Increasing awareness of the experience of being a victim was the impetus for Directive 2012/29/EU of the European Parliament and of the Council of October 2012 establishing minimum standards on the rights, support and protection of victims of crime, given legislative force in the Criminal Justice (Victims of Crime) Act 2017. Article 18 of the Victims’ Rights Directive provides that the victim of crime has a right to protection which safeguards against re-victimisation. Article 21 of the Directive enshrines the victim’s right to privacy. While the Victims’ Directive defines the victim of a crims as including anyone who complains to being the victim of a crime, that development is not reflected in national legislation. Hence, while the person who complains of sexual violence is ordinarily so named, acquittal does not necessarily mean that a complaint was false. This European law development adds a further imperative to restricting any unnecessary intrusion into the private life of anyone alleging themselves to be the victim of any crime, of whatever kind; though the focus on sexual violence remains most apparent from day-to-day practice. How common law concepts of relevance and the test for disclosure should be resolved in the context of this legislation, where potential rights impacting on the imperative to conduct all criminal trials “in due course of law” under Article 38.1 of the Constitution, inform the resolution of the issues in this case. Centrally, since this is an application by way of judicial review to halt a criminal trial, it must also be resolved as to whether rulings on this issue should be left to the trial judge or are properly within the province of the High Court to stop a trial in consequence of this kind of allegation of insurmountable unfairness.

At issue

10. On this appeal, these issues are brought into particular focus. As the background, now detailed, particularises, this complainant alleges a series of offences perpetrated against her by this accused. That was set out in a wide-ranging statement to gardaí. This was, first of all, furnished to the accused in redacted form. When the accused sought, and was given, an unredacted version, in detailing her life history, the complainant mentioned other events in passing. This may be put concisely thus:

a) a complaint to the gardaí resulting in a criminal prosecution and conviction of an uncle; see The People (DPP) v TF [2021] IECA 120; b) a mention of assault by another uncle, not resulting in an investigation; c) a mention of a rape while in her 20s in the context of a party in England, which was not formally pursued; d) a reference as to a molestation, or actions directed towards that, in her childhood by comparative strangers, which did not result in any formal investigation; e) a mention of sexual abuse by a neighbour; f) a mention that two family members had sexually abused her, neither of which resulted in a formal investigation.

11. Are the names of all of these, and all accounts which she gave about them, if any, to be brought into the purview of the accused and, with the possible leave of the trial judge, potentially deployed at trial? The solicitor for the accused requested all those details as well as information of any distress-related health issues and, being dissatisfied with what was offered in response, commenced this judicial review in the High Court seeking orders to halt the prosecution of the accused. It should also, for completeness, be noted that in this case the complainant appears to have indicated that she made some kind of complaint about sexual abuse to An Garda Síochána sometime in 2002, but investigating gardaí made inquiries and there are no records now recoverable of any complaint made by the complainant at any time, excepting the current case and the case against one of her uncles which was prosecuted. That a record cannot be found does not, of course, mean that a complaint was not made.

Leave to appeal

12. Leave was granted by this Court (Charleton, Murray and Donnelly JJ) on 6 November 2023; [2023] IESCDET 134. In the determination and subsequent case management it was decided that the appeal should centre on these issues:

(i) Is it within the competence of criminal procedure for a notice for particulars, however formed, to be served on the prosecution, or the alleged victim of a crime, or to, in substance or in form, seek discovery from that source. (ii) Are there rights which inure to the alleged victim of sexual violence to be protected from enquiry into prior alleged incidents of that kind and if there is an interests of justice exception, does such require an application to the actual trial judge under s 3 of the Criminal Law (Rape) Amendment Act 1981. (iii) What criteria are to be applied in such application at 2. (iv) Is there a privacy exception, or psychotherapeutic privilege, to an application for particulars or discovery, however formed, and when does this protect the alleged victim of sexual violence. (v) If there is any entitlement to obtain disclosure or particulars, however formed, form a complainant as to the details of any other alleged incidents of sexual violence, what criteria are to be applied in the assessment of whether it is necessary for the purposes of ensuring a fair trial that the defendant obtains such material? (vi) When may judicial review be granted instead of the trial judge ruling on applications as to the fairness of a criminal trial.

High Court and Court of Appeal rulings

13. In the High Court, Meenan J [2022] IEHC 229 stayed the prosecution. He followed the decision in Vattekaden v DPP [2016] IECA 205. He ruled that the accused was entitled to an order staying the prosecution of the charges against him unless and until the complainant disclosed, within four months of his judgment, the information requested by the accused as to names of all those prior assailants and the details as to what was alleged against them. Unless this direction was followed, and within that time, the prosecution would be permanently halted. The High Court further explicitly ruled that the issue of disclosure was properly to be dealt within these judicial review proceedings and not by the trial judge by giving appropriate rulings during the course of the proceedings and through directions to the jury. The Director of Public Prosecutions appealed to the Court of Appeal, where the appeal was allowed.

14. The Court of Appeal, Birmingham P, Woulfe and McCarthy JJ, overruled the High Court decision, [2023] IECA 179, holding that issues as to discovery were for the court of trial and that the nature of the disclosure actually made and the extensive information provided in response to the accused’s solicitor’s request, including whether more information was needed in order to ensure a fair trial. It was held that whereas there may be situations where an accused could establish by judicial review in the High Court that a trial would be unfair, those required substantial proof, and that this was lacking here. The Court relied on established principles applicable to the prohibition of a criminal trial. Woulfe J, for the Court, allowed the appeal, set aside the order of the High Court and dismissed the application for judicial review. The Court’s reasoning was as follows:

67. Applying those principles to the circumstances of the present case, I am not satisfied that the applicant has discharged the onus of proving that necessary material has been withheld from him to such an extent as would give rise to a real risk of an unfair trial. At the trial the applicant’s legal team may seek to ask the complainant for details of the information previously sought in advance of the trial. If so, and if the complainant continues to refuse to reveal that information (as has been indicated by the respondent will happen), then in my opinion (as per Fennelly J in PG) there is no reason whatever to assume that the trial judge will not address the issues arising and rule upon them appropriately, against the backdrop of his or her fundamental obligation to ensure that a trial is fair.

68. I might observe that before making any ruling the trial judge may have to consider, on the one hand, whether the applicant would necessarily be disadvantaged, and the extent of any such potential disadvantage, by any such refusal by the complainant to disclose the information sought. The trial judge may also have to consider, on the other hand, other possible countervailing factors such as any possible privacy rights of the complainant, and the possible use of which the applicant might make of the information sought, having regard to possible issues around the admissibility of evidence such as the collateral questions rule and questioning as to a complainant's previous sexual history. All of these possible considerations would arise in the context of the actual evidence at the trial.

69. At para 45 above, I refer to certain observations made by Hogan J in Vattekaden regarding the disclosure issue arising at trial. Hogan J was of the view that, if at a trial in that case, the complainant were to refuse to reveal the identity of the persons who were the subject matter of the earlier complaints, he found it difficult to see how the trial judge would have any option other than to bring the trial to an end. With respect, I am of the opinion that this view as expressed by Hogan J. probably goes somewhat too far, and I do not think a trial judge should feel constrained by these observations in considering all of the relevant factors which may arise if called upon to make an appropriate ruling, including the factors set out by me above, in the context of the actual evidence at trial.

Precise factual context

15. The offences the subject of this prosecution comprise eight charges of indecent assault contrary to section 6 of the Criminal Law Amendment Act 1935 and ten charges of indecent assault contrary to s 10 of the Criminal Law (Rape) Act 1981. The abuse by the accused of the complainant is asserted to have happened when the alleged victim was between 4 and 14 years of age, and the accused was aged between 20 and 29 years. The allegations relate to a time between, it seems, 1975 and 1984, about 49 years ago to 40 years ago. In June 2016 the complainant made an official report to the gardaí that the accused had sexually abused her when she was a child. In January 2017, the accused voluntarily attended a garda station to take part in a cautioned interview. He denied all of the charges. Furthermore, he denied allegations against him that he had previously made certain admissions of wrongdoing when supposedly confronted within a family situation with the allegations of the complainant. The accused was subsequently charged with offences of indecent assault and arrested. The indictment was listed for trial in the Circuit Court on 6 November 2018, but due to the absence of a witness, the case could not then proceed. A new trial date was proposed. On 20 May 2019, before that date came around, judicial review proceedings were commenced in the High Court to stop any further prosecution of the accused.

16. The complainant says in her statement to the gardaí that the first incident of sexual abuse happened around February 1975 when she and her siblings were being minded by the accused in her family’s mobile home. Several other alleged incidents occurred at two other principal locations mentioned in the book of evidence. She also refers to subsequently encountering the accused at the obsequies for his mother and alleges that he put her in some kind of greeting gesture and whispered in her ear “I’m sorry”. This apparent partial admission was denied by the accused in his garda interview.

17. There may be some evidence that may, depending on the view the jury takes, following a ruling in the law by the judge, corroborate some allegations. In the witness statement of the complainant’s younger brother, he records the accused taking the complainant and himself for an outing in his car. In that situation, he recalls hearing the complainant screaming and crying in a room subsequently and how he tried to get to the complainant to enquire what was going on. Other proposed witnesses for the prosecution include the complainant’s stepmother who made a statement describing calling family members to a meeting at the family home in or about 2001 but whatever may or may not have transpired, that witness is now dead. In that regard, there is a memo of the garda interview with the accused in which records him recollecting a family meeting where the complainant alleged that he had sexually assaulted her in the past. He stated that he was, as he put it, cornered by her family somehow joining forces but he denied saying anything by way of an admission at that meeting. The complainant’s older brother, another proposed witness for the prosecution, is also dead. The possible significance of that witness is that he allegedly observed the complainant shouting at him when she was sitting in the front of the accused’s vehicle and the complainant is also said to have made a disclosure to him of the abuse by the accused. The complainant’s sister is also a potential witness for the prosecution. Through the disclosure process, the following entry came to light in a community nurse’s report in 2005 as to what the complainant allegedly said: “She stated that her sister [redaction] and sexually abused her and that she hadn’t disclosed this before. ……[redacted] asked me would I tell Dr [redacted] what she told me today.”

18. The accused’s solicitor wrote to the applicant by letter dated 7 June 2017, and a follow- up letter dated 29 May 2019, seeking certain specific items of disclosure, including:

(i) Copies of all unredacted statements taken during the course of this investigation, including unredacted versions of all statements in the book of evidence; (ii) In relation to the complainant, any other complaints made to her to the gardaí or to any other person concerning any allegations of sexual/physical abuse; (iii) The complainant’s medical records from 1978 onwards; and (iv) All notes, records or reports of any counselling of any nature received by the complainant.

19. As indicated concisely above, the unredacted statement of the complainant was furnished to the accused’s solicitor and this version, with all blackings-out removed, referenced other incidents where she had been subjected to abuse by others. By letter dated 21 February 2018, the accused’s solicitor also requested to be furnished with the names and addresses of two young persons who allegedly assaulted her, names and all documents to do with an allegation of rape at a party when she was living in England, the full papers as to the successful prosecution of her uncle, any allegation against a neighbour, and another allegation against two other family members who were not prosecuted and one of whom is now dead.

20. As is so often the case, while the prosecuting authorities will have access to witness statements and documents produced in aid of bringing the case to trial, counselling records, private computer and phone records and notes from counselling sessions will not be in their immediate procurement. These will belong to the witness, here the complainant. The prosecution cannot direct any witness, including the alleged victim of an offence, to produce diaries, counselling records or electronic data; PG v DPP [2007] 3 IR 39. All that can be sought is cooperation, on the commonsense basis that disclosure assists in bringing the case to trial. Furthermore, and relevant here especially, if there are foreign police forces that may have records, that is outside the scope of any jurisdiction that a court may have to order disclosure.

Final position

21. In further correspondence between solicitors for the Director of Public Prosecutions and the accused, the complainant provided information that included some of her medical records and three further statements made by her as to abuse by others. As regards the allegation of sexual abuse by a family member, the relevant detail is that the complainant’s uncle was prosecuted in respect of 20 sexual offence counts in respect of five complainants and found guilty of three counts of indecent assault in respect of this complainant. He is now dead.

22. Following protracted exchanges, the complainant’s ultimate position was that regarding the reference she made in her original statement to other people who allegedly abused her, she did not want to name any of these people, namely the relations who were not prosecuted (some now dead), the two boys in the lane who accosted her when she was a small girl, the neighbour that she alleges sexually assaulted her and the man who allegedly raped her at the party in England when she was in her 20s, or make statements or present any further details on these incidents, as alleged. In consequence, the pinch point of this disclosure exchange is encapsulated in a statement of the complainant of 17 September 2018, which refers to three incidents where she, in effect, declares that enough is enough:

In relation to the references I made in my original statement to the other people who abused me, I want to re-iterate that I do not want to name any of these other people or disclose any information about what happened. This includes my other uncle [the one who was not prosecuted], the man in Broseley [in England who raped her in the context of a party when she was in her 20s] and the two boys in Skerries [who sexually assaulted her in a laneway as a young girl]. I don’t want to make any complaint about these incidents or discuss them any further.

Judicial review

23. The key issue for decision on this appeal is whether the refusal of the complainant to make further statements to the gardaí that give details of any abuse suffered, through the actions of family members apart from this accused, the man at the party in England and the two boys in Skerries, has been proved by the accused to constitute such an irremediable denial of justice that no ruling by the trial judge during the criminal process and no appropriate direction to the jury at trial could enable the prosecution of this accused to be “in due course of law”, as required by Article 38.1 of the Constitution. The accused, as an applicant in the High Court for judicial review to prohibit a trial, must meet that test. Otherwise, the trial proceeds and the duty, as in the ordinary course of all criminal proceedings, remains with the trial judge to ensure that the process is fair.

24. Prior to the Criminal Procedure Act 2021, which introduces preliminary rulings as to evidence and procedure prior to swearing in a jury, and the 2017 amendment to the Criminal Evidence Act 1992, the availability of judicial review to stop a criminal trial, was premised on proof of that trial being irremediably so flawed as to constitute an infringement of Article 38.1 of the Constitution; Nash v DPP [2015] IESC 32. The duty to ensure a fair trial is primarily cast on a trial judge, whether in the High Court or in the Circuit Court, both in front of a jury, or in the District Court by summary trial. While the issue here is the disclosure of information, dealing with the closely related issue of an unavailable witness consequent upon delay in MS v DPP [2015] IEHC 54, O’Malley J stated:

It is the task of a trial judge to ensure that a jury is properly directed as to the difficulties faced by an accused in this type of case. It is also within the trial judge’s powers to stop the trial if that is necessary to prevent unfairness, which may become more apparent when witnesses give their evidence and any inherent frailties are exposed. To prevent a trial from getting off the ground, however, there is a clear onus on the accused to demonstrate that the passage of time has caused identifiable prejudice. It is not sufficient to claim that a particular witness, now unavailable, might have had something helpful to say on behalf of the accused without some indication as to why that should be so.

25. The test applied on judicial review is that found in the judgment of Clarke J in Nash, [paras 2.19-2.22]. That test is: that judicial review will only be granted where it is demonstrated that the trial would be a clear denial of justice based upon factors that are found to be culpably wanting in terms of fairness. And whether the issue is that there is general delay (which is subject to a warning to the jury as to the dangers which an accused may face through elapse of time), or missing information or a witness who is no longer available, the issue on judicial review in the High Court is the materiality of any such alleged flaw and whether, in the light of the way the evidence in the case has unfolded, whether that defect is such as to undermine the trial whereby the accused has been deprived of “a realistic opportunity of an obviously useful line of defence”; see the judgment of Clarke CJ in The People (DPP) v C [2019] IESC 94 at 9.24, quoting Hardiman J in SB v DPP [2006] IESC 67. In the latter case, it was the absence of potential witnesses to whom allegations of indecent assault were said to have been made that rendered the trial unfair and enabled an order stopping the trial to be made on judicial review.

26. In the SB case, the allegation by the complainant was that, over a 4-year period from 1975, while he was incarcerated in a mental hospital, and while the accused was the only nighttime nurse on duty, he was abused in a room off the ward. The complainant asserted that he made a protest to two doctors, who in turn said they would speak to a consultant. One of those doctors was supposed to have responded by giving the complainant an injection to enable him to sleep. These three potential witnesses were dead by the time the judicial review application was initiated many years later. The witnesses were central since, if these witnesses had denied that complaints were made, the credibility of the complainant would have suffered significantly. All of the complaints related to the offences with which the accused was charged and the credibility of the complainant’s testimony was the core aspect of the prosecution case.

27. A considerable difference is apparent here. That difference is as between mention of other incidents in the past of people other than the accused abusing the complainant and the possibility of witnesses who could be called at a criminal trial, and whose testimony has a real potential to advance or undermine the prosecution case. Since evidence of complaint proximate to the alleged offence is admitted on sexual violence cases, only to demonstrate consistency, these others, if called or to undermine that case would be likely to deny that any other offence happened.

28. While the legal landscape has further shifted towards the trial judge being the appropriate forum for adjudicating allegations that a trial would be unfair by reason of any alleged infirmity, such as missing witnesses or delays or inadequate disclosure, the profusion of case decisions may lead to an unnecessary focus on the review of principles which are already clear. Judicial review is not to be granted to prohibit a trial absent proof by the accused, as applicant, that such prejudice has been suffered by him which is so severe that it cannot realistically be remedied by the trial judge. Hence, where that is demonstrated, the High Court should prohibit any further criminal proceedings. The case law on this proliferates but it is no part of the function of the High Court to re-analyse decided cases which lay down clear principles. Rather, the principle established by the case law should be followed. In that regard, a useful summary was enunciated in K v Moran [2010] IEHC 23, at para 9 thus:

(1) The High Court should be slow to interfere with a decision by the Director of Public Prosecutions that a prosecution should be brought. The proper forum for the adjudication of guilt in serious criminal cases is, under the Constitution, a trial by judge and jury; DC v DPP [2005] 4 I.R. 281 at p. 284. (2) It is to be presumed that an accused person facing a criminal trial will receive a trial in due course of law, one that is fair and abides by constitutional procedures. The trial judge is the primary party to uphold the relevant rights which are: the entitlement of the accused to a fair trial; the right of the community to have serious crime prosecuted; and the right of the victims of crime to have recourse to the forum of criminal trial where there is reasonable evidence and the trial can be fairly conducted; PC v DPP [1999] 2 IR 25 at p 77 and The People (DPP) v JT ( 1988 ) 3 Frewen 141 (3) The onus of proof is therefore on the accused, when taking judicial review as an applicant is to stop a criminal trial. That onus is discharged only where it is proved that there is a real risk of an unfair trial occurring. In this context, an unfair trial means one where any potential unfairness cannot be avoided by appropriate rulings and directions on the part of the trial judge. The unfairness of the trial must therefore be unavoidable; Z v DPP [1994] 2 IR 476 at p 506 - 507. (4) In adjudicating on whether a real risk occurs that is unavoidable that an unfair trial will take place, the High Court on judicial review should bear in mind that a District Judge will warn himself or herself, and that a trial judge will warn a jury that because of the elapse of time between the alleged occurrence of the facts giving rise to the charges, and the trial, that the accused will be handicapped by reason of the lack of precision in the presentation of the case, and the disappearance of evidence such as diaries, or potentially helpful witnesses, or by the normal failure of memory. This form of warning is now standard in all old sexual violence cases and a model form of the warning, not necessarily to be repeated in that form by all trial Judges, as articulated by Haugh J is to be found in the decision of the Court of Criminal Appeal in The People (DPP) v EC [2006] IECCA 69. (5) The burden of a proof on an applicant in these cases is not discharged by merely making a general allegation of prejudice by reason of the years that have elapsed between the alleged events and the commencement of the criminal process. Rather, there is a burden on such an applicant to fully and actively engage with the facts of the particular case in order to demonstrate in a specific way how the risk of an unfair trial arises; CK v DPP [2007] IESC 5 and McFarlene v DPP [2007] 1 IR 134 at p.144. (6) Whereas previously the Supreme Court had focused upon an issue as to whether the victim could not reasonably have been expected to make a complaint of sexual violence against the accused, because of the dominion which he had exercised over her, the test now is whether the delay has resulted in prejudice to an accused so as to give rise to a real risk of an unfair trial; H v DPP [2006] 3 IR 575 at p 622. (7) Additionally, there can be circumstances, which are wholly exceptional, where it would be unfair or unjust to put an accused on trial. Relevant factors include a lengthy elapse of time, old age, the sudden emergence of extreme stress in consequence of the charges, and which are beyond that associated with the normal stress that a person will feel when facing a criminal charge and, lastly, severe ill health; PT v DPP [2007] IESC 39. (8) Previous cases, insofar as they are referred on the basis facts that are advocated to be similar, are of limited value. The test as to whether a real risk of an unfair trial has been made out by an applicant, or that an applicant has established the wholly exceptional circumstances that had rendered unfair or unjust to put him on trial, are to be adjudicated in the light of all of the circumstances of the case; H v DPP [2006] 3 IR 575 at p 621.

29. To those principles it may be added that the powers of a trial judge to make preliminary orders in furtherance of a fair trial has been strengthened by the Criminal Procedure Act 2021 and the primary responsibility of the trial judge in sexual violence cases in the 2017 amendment to the Criminal Justice Act 1992.

Application of the principles in K v Moran

30. This is not a case where it has been demonstrated that a fair trial cannot take place. Essentially, the focus of this case has sought to be shifted from one where the complainant is making allegations against the accused, which may or may not be of sufficient credibility to enable a conviction or which may or may not be supported by other evidence, to one where the entire life history of the complainant has been sought to be put in issue. Principles of remoteness, and the specific rules governing the deployment at trial by an accused of evidence as to, and questions through cross-examination about, the prior sexual history of a complainant, together with the principle that cross-examination as to credit is final, clearly indicate that, supposing judicial review to be available, this case does not meet the threshold for judicial review.

Relevant question

31. It is useful to consider how the process of disclosure as sought by the accused would actually work in practice. There is no power in a trial judge to order a complainant to make a further witness statement. At trial, a trial judge may require a witness to answer a relevant question. Is it relevant that in recounting a history of abuse by one person, a complainant also briefly references other acts of abuse by other people, including one who was previously convicted? Since what is involved in sexual violence is a coerced experience, questions may only be asked, or evidence called, about this with leave of the trial judge under s 3 of the 1981 Act as amended. Such questions about remote experiences, and whether these were truthfully mentioned in a statement against this accused, might go to the credit of the complainant should the allegation be posited that in those cases, apart from the uncle who was prosecuted, she took no action.

32. Prior sexual history evidence is almost irrelevant to the soundness of testimony on a sexual violence charge. Even still, at this trial the accused has the option of seeking the leave of the trial judge under s 3 of the 1981 Act about prior abuse which she says was inflicted on her. The focus might be towards asking the complainant as to whether what is tangentially mentioned in the unredacted statement, she may have imagined herself to be a victim of other incidents; imagined on the basis that since no complaint was made in such cases, there must have been no foundation in reality for what she says in passing happened to her in the past. That would involve the accused taking a conscious risk that opening up that question may also thereby enable re-examination on the conviction of her uncle. That might emerge as a strengthening riposte to such a question. That cross- examination would be of prior sexual experience, but would focus on reliability based on what might be alleged to be a failure to follow through on a victim’s right to officially complain of a crime. The issue would be common to any crime, and not just sexual violence, where a person makes a complaint of the index crime being prosecuted but mentions crimes committed against themselves in the past. Here, s 3 of the 1981 Act as amended is applicable. Should the accused consider it wise to proceed with opening up this avenue of enquiry, of whether the complainant makes up allegations or believes in allegations the lack of foundation for which is supposedly demonstrated by a failure to follow through, is a matter for decision. Nothing stops an accused following that course ordinarily, but here that is subject to s 3 of the 1981 Act as amended.

33. Of utility in the analysis of this issue is to move away from the circumstances of this case and posit an example from a case that is not one of alleged sexual violence. Certainly the prohibitions in s 3 of the 1981 Act, as amended, circumscribe questions as to prior sexual experience, but having an over-vivid imagination or habitually making allegations that may be considered unsound because they are not followed through on, can be a legitimate, but risky, line of cross-examination in a criminal case. Suppose, for instance, on a charge of fraud, the victim of a scam mentioned in a statement to the gardaí that on some few, or even several, occasions in the past, he or she had fallen for a deception that cost them money but had not followed up on that with a formal criminal complaint. “Why did you not bother?” That is a relevant question. But, disclosure of all information as to names and addresses of all such alleged fraudsters would run the risk of de-focusing the essence of the trial; as would the prospect of evidence being called from those alleged fraudsters to claim, should they be available, that they had been acting in good faith or that the incident had not happened at all. A decision on that would be a matter for the trial judge.

34. It is consequently necessary return to the facts of this case and to think through what might happen if, for instance, the man in England who the complainant says raped her at a party while she was in her 20s, were to be contacted, should it now be possible decades later to identify him. Since juries are required to assess cases shrewdly and on the basis of common sense, no lesser standard applies to trial judges in dealing with this kind of speculative application. It is stretching credulity that this man might now be found and, if found, that he would do anything other than deny any such incident. A similar comment may be made about the boys in the laneway from so long ago. The family members should be within the reach of the accused’s legal advisors and, again, it is unlikely that they would do anything other than deny the abuse. But, while subject to s 3 of the 1981 Act as amended, the issue might be raised, the prospect of diverting the trial away from the core issues would have to be born in mind by the trial judge.

35. Without leave of the trial judge, the complainant should not be required to expand on what she has said and required to give details of incidents which are not germane to the trial. If, on the other hand, the complainant is asked whether these events happened and if it were to be the case that she replies that they did, the question might legitimately arise as to whether these details of her history were true since further action, apart from the uncle who was prosecuted, was not taken. If the complainant answers that she was too dispirited to take action, or felt it might be pointless, that answer is final. If the question put to her is that she did not proceed because what she said was made up, she may answer that nothing was made up. It is for those reasons that disclosure remote from the allegations in a criminal trial should not be made. 36. This case does not meet the threshold for judicial review. The principles stated in K v Moran remain relevant to judicial review cases related to contended unfairness due to delay or to missing witnesses or evidence. But the statutory context has radically changed in the consideration of judicial review in disclosure cases. This is through statutory intervention; which has rendered the decision in Vattekaden no longer one to be followed. The responsibility is that of the trial judge and not the High Court on judicial review. Further, when the alleged victim of a sexual violence is given counselling, there is a specific statutory protection inuring to a complainant. And with that there is Article 21 of the Victims Directive on privacy. These are real protections that are not to be signed away without the prospect of a complainant obtaining proper advice. These safeguards will be specified below. What may easily be lost sight of here is that a criminal trial defines itself by the charge, the evidence supporting it and any answer by the accused. Diverting a case into side-issues is not permitted unless a reasonable basis for relevancy is first laid. Fundamentally, the focus of a criminal trial should be on the allegation made. This is not only the basis for control by the trial judge at common law but is also the point of the central statutory reforms that are now applicable. It is now necessary, therefore, to refer to these and to posit some guidance as to how the kind of application exemplified in this case should be decided by a trial judge.

Disclosure and remoteness

37. By way of background, it should be stated that a judge sitting in a criminal list has the power to refuse to set a date for trial unless the prosecution discloses documentation relevant to the potential defence of an accused. Naturally, such documentation has to be within their procurement. Further, statutory and European Union provisions enable direct orders whereby a court may offer necessary protection to victims, including those who assert themselves to be victims, as to the criminal process: 2012 EU Directive on the right to information in criminal proceedings 2012/EU/13 implemented here under SI Number 549/2022 - European Union (Right to Information in Criminal Proceedings) Regulations 2022. Article 7(1) of the 2012 Directive provides for rights for the accused person whereby he or she is enabled to contest a case in an effective manner:

Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.

38. While it has been doubted as to whether there is a power vested in a criminal court to order disclosure which is coterminous with discovery in civil litigation, these cases never sought to doubt or override the duty on the prosecution to provide the accused with such material as might reasonably assist in establishing potential innocence; Conlon v Kelly [2002] IR 210 (SC); The People (DPP) v Sweeney [2001] 4 IR 102, DH v Groarke [2002] 3 IR 522, JB v DPP [2006] IESC 66. Section 6(1) of the Criminal Procedure Act 2021 enables a court of its own motion to hold a pre-trial or preliminary hearing. No formality is needed in that regard and prior to, and without the need for such legislation, such hearings have been held over decades. Their purpose is to ready the trial and to form it into a concise shape for consideration by a jury. That includes ensuring that proper disclosure has been made as well as ruling on such matters as the admissibility of evidence. Section 6(8)(f) of the 2021 Act gives a general power to judges as a preliminary to the trial to make: any other order relating to the conduct of the trial of the offences concerned as appears necessary to the court to ensure that due process and the interests of justice are observed.

39. Legal analysis establishes that since the prosecution have a public, and not sectional, duty in furtherance of justice and that Article 38.1 requires criminal trials to meet the standard of “due course of law”, there is a duty on these taking a criminal case to search out and show both any positive case towards guilt and such material as might reasonably undermine the facts upon which that proposition is based. This is also how the common law has developed. Article 7(2) of the Disclosure Directive declares no more than that obligation, in stating that the prosecuting authorities must “ensure access” to “at least all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons” in order “to safeguard the fairness of the proceedings and to prepare the defence.” Derogation from that may occur, in a manner similar to privilege as understood by the common law, under 7(4) of the Disclosure Directive which provides for exception from that right where “such access may lead to a serious threat to the life or the fundamental rights of another person” or for “public interest” including “cases where access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings are instituted.”

40. A principle may be clearly stated that relevant disclosure within the procurement of the prosecution should be made to an accused, subject to relevant common law or statutory provisions providing otherwise. At the same time, concepts in aid of a fair trial are undermined as to their legitimacy where what is in aid of that fair trial becomes, instead, an objective in itself that is divorced from that principle. The danger is that an issue may be detached from the reality of relevancy as to issues or remoteness from the nature of the case presented or the defence that might be mounted. In that regard, while the obligation of disclosure is on the prosecution and is not on the defence, except in certain limited situations provided for by statute (see below). A feature of the trial of sexual violence cases is that the accused is invariably interviewed and is equally likely to make some statement of denial (in the case of under-age allegations) or of consent (where the complainant is an adult). This answer informs the nature of the obligations that arise. Hence, a trial judge, as in this case, will have information in the vast majority of cases not only as what the prosecution case is but also as to what the answer of the accused is. Even if such information is lacking, the submissions of counsel must be based on instructions or, if the accused is offering no instructions to his or her counsel, merely theoretically possible, on what response reasonably arises on the prosecution case.

41. In that regard, since reasonable doubt is the touchstone whereby on a consideration of the entirety of a case a jury may not convict, repeated in s 3(3) of the 1981 Act as amended, unreasonable demands which lead to what lacks any real relevance to the case should be refused. Here, it assists in referencing the analysis set out in The People (DPP) v Almasi [2020] IESC 50 at [24] as to what is relevant:

Evidence is relevant if that evidence renders more probable or more improbable any fact in issue in the trial. That requires a trial judge to have regard to what the building blocks of the prosecution and defence cases are. It is in this context that relevance may be assessed. That is assessed on the basis of ordinary sense and experience. Hence, where the accused is charged with murdering the victim, it is relevant that the accused had expressed hatred of the victim and a desire to see him or her dead. It is similarly relevant on a burglary charge that the accused was seen near the scene of the crime at the time it was committed. Facts are relevant because of their relationship with facts in issue and assume importance in terms of weight as the jury assesses the facts. Central to any issue of relevance is to ask what case is being made and whether ordinary sense and reason renders a fact disputed as to relevancy more likely in consequence of being considered as part of the overall body of evidence. Such an analysis can also result in a fact being considered more unlikely if it is part of the building blocks of the prosecution case or the defence case to disprove a disputed fact. For instance, a box containing cannabis resin weighs much more than a box containing cigarettes. A box containing poitín feels different to a box containing drugs or guns. It is on the elements of what is in contest that relevance is to be decided as a matter of ordinary logic. These examples are from cases where, in the first, the accused claimed to have been transporting cigarettes on which customs duties to the Revenue had not been paid, not drugs; and in the second where the defence proposed that a shipment of cannabis resin might be illegal alcohol. Cole, Irish Cases on Evidence (2nd edition, Dublin 1982) puts the matter succinctly at pages 1-2 thus:

It must be borne in mind that in its ordinary meaning “relevance” denotes something which is variable and elastic: variable because a particular fact may be relevant in one context and irrelevant in another, elastic because the relevance of any relevant fact may vary in degree from being only minimally of interest to being highly or compulsively persuasive. Facts which are only minimally relevant maybe excluded on that ground alone.

42. It is in that sense that any plea on behalf of an accused for yet more information about other aspects of the complainant’s history should be assessed. In effect, it is often pleaded that anything even remotely or potentially relevant should be disclosed. In that regard, the tangential reference to disclosure in DPP v Special Criminal Court [1999] 1 IR 60, so often cited as authority in aid of such applications, requires to be read within its correct context. This Court on the appeal in that case did not comment on the reference by Carney J in the High Court which adopted a formula for disclosure which is derived from that for discovery of documents in a civil case in Compagnie Financiere et Commerciale du Pacifizue v Peruvian Guano Company (1882) 11 QBD 55 at 63. What should be noted is that this is a test which has repeatedly been bordered by requirements of reasonableness where disclosure in criminal cases is in issue. That consideration is crucial. Simply because a fact is disclosed late, or after conviction, does not at all alter the principle. This bounds disclosure on what is rational in the context of the building blocks of the case on both prosecution and defence sides and whether what emerges could reasonably be regarded as undermining a fair trial or fair verdict. Whether timely or late, there can be no difference in the applicable principle.

43. Hence, Kearns J in The People (DPP) v McKevitt [2005] IECCA 139 regarded it as “common case that the prosecution . . . is obliged to disclose to the defence all relevant evidence which is within its possession.” And similarly at p 71 of the Special Criminal Court case, Carney J said that it was a duty on the prosecution that it “must disclose any document which could be of assistance to the defence in establishing a defence, in damaging the prosecution case or in providing a lead on evidence that goes to either of these two things.” In Tobin v Minister for Defence; [2019] IESC 57, Clarke J outlined several principles to be discerned in the context of discovery in civil litigation from which the DPP v Special Criminal Court statement had been derived: First, the key criteria remain those of relevance and of necessity. However, it also seems clear that there has been much greater scrutiny of the issue of ‘necessity’ in more recent times. The traditional position very much accepted that if documents were relevant, their discovery would almost inevitably be necessary. However, much of the recent case law has indicated a need to move away from that position. Where there are other equally effectual means of establishing the truth and thus providing for a fair trial then discovery may not be ‘necessary’. This will certainly be so where it can be shown that the cost of making discovery would be significant and would greatly outweigh the costs of pursuing some alternative procedural mechanism to establish the same facts. Similar considerations apply when the likely true relevance of documentation may not become clear until the trial but where the immediate disclosure of the documentation concerned would necessarily involve disclosing highly confidential information. Furthermore, the development of a proportionality test can itself be seen as a further refinement of the concept of ‘necessity’.

44. Part of the prosecution duty of disclosure extends into the police and other investigating authorities. And here the duty does not, and cannot, require more than what is reasonable; and that from what the prosecution have access to. The principle of reasonableness binds everything. Hence, a proper investigation pursues suspicions, seeks legal authority to search based on reasonable suspicion, arrests a suspect only where a reasonable suspicion justifies that deprivation of liberty and, in all of this, keeps an open mind, preserving what may assist the focus of the prosecution case but not rejecting contrary indications that may be of assistance to an accused; Dunne v DPP [2002] 2 IR 305, Scully v DPP [2005] 1 IR 242. It is within the competence of the trial judge, including the judge hearing a preliminary application, to assess the degree to which the accused has asserted that undisclosed material might make a difference to the defence of a criminal charge. No aspect of the right of the accused to remain silent in the face of a charge can render it appropriate to leave opaque what case the defence may seek to make at trial. Apart from what the accused may have said in a police interview, either while under arrest or in an arranged interview, there are only a range of answers to a sexual violence charge. These scenarios repeat themselves.

45. Apart from that, there are situations where disclosure by an accused is statutorily mandated. Brief mention may be made of these now; but only for completeness. Disclosure of alibi is required under s 20 of the Criminal Justice Act 1984; “the accused shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.”; Disclosure of the existence of an expert report is required under s 34(2) of the Criminal Procedure Act 2001 where “the defence intends to call an expert witness or adduce expert evidence” then “notice of the intention shall be given to the prosecution at least 10 days prior to the scheduled date of the start of the trial.” The report is also required. Notice of an intention to call bad character evidence against a prosecution witness, under s 1A of the Criminal Justice (Evidence) Act 1924 as amended by s 33 of the Criminal Procedure Act 2010 is needed where that evidence involves “imputations on the character of a prosecution witness or a person in respect of whom the offence is alleged to have been committed and who is either deceased or so incapacitated as to be unable to give evidence, or evidence of the good character of the person”. Section 1A of the Bail Act 1947 requires a person charged with a “serious offence” to furnish the prosecutor with a written statement containing certain specified information relating to the applicant. Section 19(1) of the Criminal Law (Insanity) Act 2006 requires the defence to provide notice of an intention to call evidence of mental condition of the accused. Under s 3(1) of the Offences Against the State (Amendment) Act 1998, where the proceedings are for an offence “under section 21 of the Act of 1939 the accused shall not without the leave of the court call any other person to give evidence on his or her behalf unless, before the end of the prescribed period, he or she gives notice of his or her intention to do so”. There is also provision for defence disclosure relating to confiscation orders under the Criminal Justice Act 1994 Part II, as amended by s 25 of the Criminal Justice Act 1999. Under s 11(2) of the 1994 Act, for “the purpose of obtaining information to assist it in carrying out its functions, the court may, at any time, order the defendant to give it such information as may be specified in the order”.

46. Balanced against those limited exceptions is both the duty of the prosecuting authorities of gathering evidence neutrally and of disclosing material relevant to what may be regarded reasonably as a potential defence. In addition, the prosecution should disclose to the accused the prior convictions of a witness, The People (DPP) v Kelly [ 1987] IR 596, and evidence demonstrating bias, Banks v Dretke [2004] 540 US 668 (2004).

Engagement with the evidence

47. It is a decision for an accused person, while having the freedom to remain silent, as to whether engagement with the evidence is made on any application for judicial review based on missing witnesses or delay or in any application to the trial judge for disclosure. As to whether an order for further disclosure should be made by a trial judge involves an assessment of what the prosecution case is together with a sane rationalisation of what defence may be offered, either in cross-examination or by way of adducing evidence. There is no doubt that engagement with the evidence, as opposed to vague assertion based merely on argument, is required for a judicial review prohibiting a trial to be granted. Equally, such engagement is necessary with a trial judge in the interests of a fair trial by way of application either for further disclosure or to halt a trial because of any assertion of denial of fair trial rights.

48. Fundamentally, decisions need to be taken in context. It is a matter for an accused as to how much of a potential defence is shown. But there may be a demonstration of the weakness of a case where the accused does not engage, but instead wrongly chooses to rely on hypothetical speculations. The judicial review cases demonstrate that principle. As Hardiman J stressed in Dunne at p 323:

The emphasis… on the need for obligation to seek out, and indeed to preserve, evidence to be reasonably interpreted requires, I hope, that no remote, theoretical or fanciful possibility will lead to the prohibition of a trial. On the evidence in the present case it is overwhelmingly likely that a video camera recorded the actual conduct of this robbery by its unmasked perpetrators. In those circumstances it appears to be not a possibility or even a mere probability, but a near certainty, that the video tape would indeed constitute evidence bearing vitally on the question of guilt or innocence…

I do not believe that to insist that such evidence be produced, or at least that some explanation be given for its non-production, is to take a novel conceptual step. On the contrary, as I have indicated above, I believe that the substantive conceptual step required was taken before the end of the Victorian era. It is true that, at that time, the emphasis was rather on the right of the police to seize evidence than on their duty to do so, but they were seen as having such a duty in the judgment of Wright J., cited above. This is because the right does not exist in a vacuum, but for a purpose. That purpose relates to the due administration of justice. It follows from this that it must be exercised in an impartial manner and not for the sole advantage of one side, or recklessly. I believe these conclusions follow inexorably from the judgment of Pallas CB, cited above. I do not believe that the long recognised right and duty to make all reasonably obtainable evidence available in a criminal case is properly open to criticism on the basis that it will open the floodgates to arguments based on potential relevance of a purely theoretical nature.

49. Hence, it is clear that the duty to disclose must be based on a realistic appraisal of a case, of the legal context of any special rules applicable to that type of case and through analysis of the building blocks of how the prosecution put their contention of guilt against the accused and of the scenario which the defence case may offer in response. In The People (DPP) v McCarthy [2008] IR 1 Kearns J at [46-49] affirmed the approach of Hardiman J in Dunne thus:

The Court is satisfied, however, that the obligations of disclosure are not limitless nor are they to be assessed in a vacuum or upon a purely theoretical or notional basis. Nor is a conviction to be regarded as unsafe per se simply because there has been a partial failure by the prosecution to meet the obligations of disclosure. It is a question of degree in every case, having regard to the nature and importance of the material in question. Thus in People (DPP) v Eamon Kelly [1987] I.R. 596 the failure of the prosecution to disclose a serious previous conviction of a prosecution witness was sufficient to render a conviction unsafe. In formulating principles to be derived from various English decisions such R v Collister and Warhurst [1995] 39 Cr. App. R. 100; R v Parks [1961] 1 WRl 1484 and R v Paraskeva [1982] 76 Cr. App. R. 162, Finlay CJ stated at p. 599:-

"....the court of appeal may, upon being satisfied as to the fact of such conviction and being also satisfied that it was material to the credibility of the witness, allow an appeal and direct a new trial." (emphasis added).

The court also held, however, that the prosecution did not have a duty to make exhaustive or widespread enquiries about every prosecution witness so as to ascertain if convictions had been recorded against him, a reservation which also suggests that there must be some reasonable limitations to the duty imposed on the prosecution in this regard. It also suggests that not every failure by the prosecution to make complete disclosure will automatically result in a trial which is unfair or lead to a verdict which can only be seen as unsafe.

The Court is of the view that a failure of disclosure must be shown to have been important, as distinct from technical or trivial, if a conviction is to be regarded as unsafe. To put it another way, this Court must engage with the facts of this case to see if the omission disadvantaged the defence in such a way as to render the trial unfair or the jury verdict unsafe in the particular circumstances of the individual case. That is a two part consideration: was there a failure in the first instance, and, secondly, if so, did it materially affect the outcome of the case in the particular circumstances? That any obligation or failure to meet same must be assessed by reference to the facts of the particular case is apparent from a line of recent authorities on the judicial review side which deal with the obligations to seek out evidence, to preserve it and to make it available to the defence. These authorities may obviously be seen as having a shadow application to obligations of disclosure in criminal trials. The cases extend through Braddish v Director of Public Prosecutions [2001] 3 I.R. 127, Dunne v Director of Public Prosecutions [2002] 2 I.R. 305, Scully v Director of Public Prosecutions [2005] 2 ILRM 203 to McFarlane v Director of Public Prosecutions [2006] IESC 11.

50. In the latter case, in stressing the need for an applicant to establish a risk of an unfair trial, Hardiman J said, at p 24:

In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the evidence actually available so as to make the risk apparent. Failure to do this was the basis of the failure of the applicant in Scully [2005] 1IR 242.

51. These cases make it clear that commonsense parameters must govern the scope of the duty to seek out and to preserve evidence and the consequences of any supposed failure to do so in a particular case. That also applies to disclosure and to the assessment of a trial judge when faced with a contention that more disclosure should be made or that a trial should stop in consequence of an alleged want of disclosure. As Hardiman J noted in Dunne "no remote, theoretical or fanciful" possibility should lead to a prosecution being prohibited. Repeating this in Scully v Director of Public Prosecutions [2005] 2 ILRM at 216 he added, “One is concerned, first and last, with whether there is a real risk of an unfair trial. Obviously this will depend on the individual circumstances of each case.” It follows that it was the case that in seeking to prohibit a trial by way of judicial review, a situation that cannot be remedied must be demonstrated. In contending before a trial judge that disclosure in a criminal case has not been sufficient, the accused must be able to demonstrate that the asserted failure to supply material in the possession of the prosecution, or where a complainant refuses to go further than the revelations already made, that a real, as opposed to fanciful or theoretical, opportunity for defending against an allegation has been lost.

52. This must, further, be seen in the context of any specific statutory rules limiting questions in sexual violence trials and any specific legislation that apply as to disclosure of counselling records and of the right of the privacy of a complainant or other witness not to be unnecessarily intruded upon in any fundamental manner.

Limits on cross-examination

53. In any application for information, the central issue will always be relevance. If something is too remote, or is restricted by statutory intervention, such as prior sexual history subject to judicial permission, there can be no order. If something is relevant, then privacy issues, or statutory intervention to protect counselling records, come into play. Every witness has a legal right to privacy. Where the circumstances in which a disclosure is to be made infringe privacy in a fundamental aspect, that becomes a consideration. The duty to cooperate with the prosecution in aid of the victims of crime may appropriately override that right. Equally, where it is necessary to ensure that the accused receives a trial that is fair, privacy rights may be assessed as being of lesser importance. But, as Birmingham P observed in The People (DPP) v Keogh [2017] IECA 232 [15]: “Simply because a person makes a complaint that they have been a victim of a crime does not mean that they abandon their right to privacy or that they lose that right.” 54. There may be circumstances where the duty to uphold a criminal trial will override rights to privacy. Witnesses may be obliged to give evidence in public as to sensitive personal matters. As the European Court of Human Rights, however, said in Doorson v Netherlands (1996) 22 EHRR 330, while “life, liberty and security” are at stake for an accused in a criminal trial, whether at common law or under Article 8 of the Convention, witnesses also have rights and, hence, “the interests of the defence” should be “balanced against those of witnesses or victims called upon to testify.” As well as the right to a fair trial being at the centre of the criminal justice system, it should always be remembered on applications for disclosure that other rights and interests are also at play.

55. Thus, In Rowe and Davis v United Kingdom (2000) 30 EHRR 1 at [61], the ECtHR recognised that “the entitlement to disclosure of relevant evidence is not an absolute right… In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest”. A trial in due course of law must encompass both a fair exposition of the evidence against an accused and that persons accused should be furnished with such information as may reasonably establish a doubt as to their guilt. But, as the decided cases emphasise, there should be a justifiable reason for trespassing into the private lives of witnesses beyond the facts essential for a fair trial. Here, the concepts of relevance and of remoteness are also essential. To claim on behalf of an accused on a theoretical basis that an intrusion into the private life of a witness is justifiable on the basis of the potential discovery of a fact that might remotely have some remote chance of influencing a jury is insufficient.

56. All trials must be conducted calmly and with good manners. Most especially, it is the duty of a trial judge to ensure focus whereby the examination of witnesses is conducted as an exploration into where the truth lies and not as an exercise in re-victimisation or in confusion; The People (DPP) v Sweeney, Beirne and O’Toole [2024] IECA 205. That duty existed even before the passing of s 21 of the Criminal Justice (Victims of Crime) Act 2017, but that section clarifies the powers of the trial judge:

In any proceedings relating to an offence, where a court is satisfied that—

(a) the nature or circumstances of the case are such that there is a need to protect a victim of the offence from secondary and repeat victimisation, intimidation or retaliation, and

(b) it would not be contrary to the interests of justice in the case,

the court may give such directions as it considers just and proper regarding any evidence adduced or sought to be adduced and any question asked in cross- examination at the trial, which relates to the private life of a victim and is unrelated to the offence.

57. A distinction which is easy to state, but may be difficult to apply in practice, is that between cross-examination as to the facts and that as to credit. An example only partially illustrates the distinction. If a witness identifies a man as having attacked and injured a policeman, and that identification is in issue by the accused, questions as to lighting, time of exposure of the accused’s features, distance from the event and how the suspect was picked out, in an identity parade, or in a presentation of photographs, or in the dock, are all relevant to that central fact: is the witness correct in asserting that the person charged assaulted the officer. Hence, the witness may be cross-examined as to observation and as to memory. Obviously, the accused may also testify that the witness was mistaken, that he or she took no part in the crime. Further, details as to lighting, tiredness, impediments to accurate perception or memory, means of vision, formal identification and distance in space and in time from the incident may also be explored as part of the defence case or by cross-examination on behalf of the accused. Where the identifying witness was, for instance, convicted of fraud, the accused will know that through the prosecution’s general disclosure obligation. There, defence counsel may make a decision to deploy that as a question and the conviction may be proven if denied.

58. That proof of a conviction is an exception to the normal rule that cross-examination as to credit is final. If the allegation put to the witness is that they should not be believed because they had a liaison with their best friend’s girlfriend, then an answer in denial is final and may not be contradicted. The rule that cross-examination as to credit is final is traditionally stated to exist to stop trials spinning out of focus through the pursuit of side- issues. But, since the common law enables a judge to also stop cross-examination as to credit where the process is, or becomes, vexatious, or where the allegation put has no real relationship with any fact in issue, the protection of the dignity of court proceedings and fairness to witnesses must also be considerations.

59. Confusion may arise as to whether a question to a complainant testifying about sexual violence may have allegations of other sexual acts, apart from that relevant to the charge, put to them and as to whether contradicting evidence may be called, if there is denial, as part of the defence case. Here the authorities need examination. The principle may be easily stated, which is the test that the legislation lays down in s 3 of the Criminal Law (Rape) Act 1981 as amended: the complainant may not be asked about a prior sexual experience to that with which the charge is concerned unless that could reasonably influence the jury as to the issue in the case: that issue being consent where the alleged event is recent; or whether sexual contact occurred where the charge is a historic one and, most usually, the complainant was then under-age for consent.

60. The factual situation in R v Funderburk [1990] 1 WLR 587 is unlikely to be replicated now, essentially because of Internet access by children to explicit matters from the moment they get a smartphone. There the charge was of under-age sexual relations and the defence answer was to deny that any sexual activity had taken place. The conviction was reversed on appeal where the trial judge had excluded evidence that the complainant had told two friends about prior experience of sexual intercourse. Central to the case were detailed descriptions which, in the age prior to the Internet, could, the judges thought, only have come from experience. The prosecution allegation was that the only such experience had been with the accused in the index offence.

61. Since that case, prior sexual experience has been treated as a matter of credibility only, unless the prior event is directly related to the evidence in the case, which is usually as to the likelihood of consent; R v RD [2009] EWCA Crim 2137, R v S [ 1992] Crim LR 307. In modern times, evidence of intercourse is provable by DNA evidence and prior sexual experience is not relevant to any charge of under-age sexual relations because consent is not in issue. Furthermore, the prosecution would require a good reason to lead evidence that a complainant had no prior sexual experience; The People (DPP) v Cronin [2008] IECCA 94. It is difficult to know how that might be relevant or why such a fact might be put in issue. 62. An exposition of the control by the trial judge over cross-examination of a witness as to credit was given by Sankey LJ in Hobbs v Tinling [1929] 2 KB 1, 51 where he said that a court has a discretion as to “whether a question as to credit is one which the witness should be compelled to answer” by reference to these factors:

1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies. 2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree the opinion of the Court as to the credibility of the witness on the matter to which he testifies. 3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witnesses’ character and the importance of the evidence.

63. And see May, Criminal Evidence (6th edition, London, 2015) 21.30-21.34 on the distinction as to cross-examination on the issue and cross-examination as to credit. This also appears in the Third Report of the Disclosures Tribunal (Dublin, October 2018) 23:

Any examination by counsel of what a witness says is subject to the rule that it should be based on instructions and directed towards what a represented party wishes to assert as an explanation as to what happened, or to present a contrary point of view. Where focus is kept, cross-examination of witnesses is concise. Any party examining a witness is expected to come to the point, with reasonable latitude, and to be polite, with no latitude. Examination should converge on what is important. While cross-examination is an instrument for finding the truth, it can also be used to obfuscate and to divert attention away from the central issues. It is expected that represented parties will provide their legal representative with clear instructions; that they will tell them what facts they will later testify to. Cross- examination as to credit can be legitimate. That may, or may not, be in the discretion of counsel. It may depend on the client or it may be within counsel’s hands. The credit of a witness may be important, apart from their opportunity of observation, sureness of memory or possible motive. Where is a witness coming from may be germane to some cases. If, for instance, a prisoner sharing a cell with an accused person on remand on a charge of murder claims that the accused confessed his motive to him for killing the victim, then the fact that the prisoner as a witness himself has a previous fraud conviction, is important. It would be less important if he had been unfaithful to his girlfriend, or perhaps had done something discreditable while under strain or while young. The law of evidence allows the control of cross-examination as to the credit of a witness based on its usefulness to the determination of the facts at issue and its length. That is a rule of commonsense.

64. Section 3 of the 1981 Act, as amended, applies to all sexual assault offences, defined under s 1 of the 1981 Act, as amended by s 12 of the 1990 Act and by the Criminal Law (Sexual Offences) and Human Trafficking Act 2024 as a “rape offence and any of the following, namely, aggravated sexual assault, attempted aggravated sexual assault, sexual assault, attempted sexual assault, aiding, abetting, counselling and procuring aggravated sexual assault, attempted aggravated sexual assault, sexual assault or attempted sexual assault, incitement to aggravated sexual assault or sexual assault and conspiracy to commit any of the foregoing offences.” Now also included are a sexual assault offence, “an offence under section 6 of the Criminal Law (Sexual Offences) Act 1993” and “an offence under the Criminal Law (Sexual Offences) Act 2006.” Here two comments are appropriate. Firstly, that piecemeal amendments, as opposed to codification, have led to confusion in this area and, secondly, that renaming an offence is not redefining an offence. Prior to the 1990 Act, the term “indecent assault” was used to describe non-consensual sexual activity against a female and a male, other than common law rape. In its Consultation Paper on Rape (1987), the Law Reform Commission commented that the term “indecent” had “seriously understated the gravity and enormity of the defendant’s conduct” where the conduct involved is at a very worst end of the scale of conduct covered by the term “indecent assault” (where there is non-consensual sexual touching accompanied by significant violence; Leahy and O’Reilly, Sexual Offending In Ireland (Clarus Press, 2020). Section 2 of the 1990 Act is simply a statutory re-labelling of the offence of indecent assault on a woman and indecent assault on a man and combining these two offences into the single offence of “sexual assault”. Hence, indecent assault and sexual assault are the same and by providing for sexual assault, indecent assault is also within the statutory restriction.

65. Even prior to the 1981 Act, the ordinary controls of cross-examination were in place. Judges are entitled to establish focus in a criminal trial. The nature of cross-examination as to credit is to put to a witness, on instructions and advisedly, allegations which, even if denied, will bring doubt as their truthfulness because of their conduct outside the facts in the case, as opposed to questions on the issues in a trial which are directed to accuracy and truthfulness on those matters. In The People v GK [2007] 2 IR 92, the Court of Criminal Appeal accepted the analysis as to the limitations imposed by s 3 of the 1981 Act, based on the similar wording in England & Wales, in Archbold on Criminal Pleading, Evidence and Practice (2000, London) 8.123:

The section was clearly aimed primarily at excluding questions which went merely to credit and no more. If the proposed questions merely sought to establish that the complainant had sexual experience with other men to whom she was not married so as to suggest that, for that reason, she ought not to be believed on oath, the judge would exclude the questions or evidence. On the other hand, if the questions were relevant to an issue in the trial in the light of the way the case was being run – for example, consent as opposed merely to credit – they might as a general rule be admitted.

66. The powers in s 21 of the Criminal Justice (Victims of Crime) Act 2017 may come into focus most often where sexual violence is in issue, but these are of general import in respect of all witnesses. A trial judge may give directions where evidence or a question intrude into the private life of a victim and are unrelated to the offence at trial. Such directions are open to a judge at common law where evidence, or a question, is not relevant or seeks to unnecessarily undermine the right of a witness to privacy. In sexual violence cases, the restrictions as to evidence as to or questions about prior sexual experience apply.

67. Here, the possibility of confusion as between what should be restricted and what is legitimate may arise. Any such confusion may be dissipated by a judge analysing the issue as an example outside the case. Hence, as stated previously, were it to be the case that a person alleging the offence had made a lengthy statement in which past incidents of criminality against them were mentioned, perhaps similar in kind or perhaps not, but were not the subject of official complaint, it would arguably be legitimate for the defence to question why that was. What should be remembered is that this kind of background is no more than the story of a life and that what is in issue in a criminal trial is the offence charged. That is the very issue that must be determined in this case by the trial court. It is fairly common to find that children who are sexually abused are subjected to violations by more than one perpetrator. It may be noted that the Central Statistics Office’s sexual violence survey from 2022 posits that 52% of women experienced this harm over their lifetime, whereas with men the figure was 28%; of those aged 18 – 24, 22% reported experiencing sexual violence both as an adult and as a child, while for the 65 and over age group, the figure was 8%: see (https://www.cso.ie/en/releasesandpublications/ep/p- svsmr/sexualviolencesurvey2022mainresults).

68. Hence, considerations of remoteness and irrelevancy are justified as central to any decision by a trial judge as to whether disclosure of those past and unconnected offences, beyond what has already been shared with the defence, should be ordered. A trial judge has also authority to require a question to be answered, where a witness is reluctant. Whether what might be mentioned as to other crimes by a witness in testifying or what might be referenced in a witness statement needs to be elucidated is a matter for the trial judge. Considerations of remoteness and irrelevancy will, again, govern the decision. It must be accepted that, if the defence choose, a question may be asked as to how prior and unrelated crimes were handled by a witness and why, but the legitimacy of such questions does not at all require a judge to order disclosure of documents related to those offences, even supposing them to exist, or to demand that a witness provide such details as he or she can remember as to circumstances or identities. Considerations of the entitlement of a witness to preserve privacy in fundamental aspects of that witness’s life are also important unless relevance to the offence under trial can be demonstrated.

Restrictions and disclosure

69. Since restrictions of remoteness, privacy and relevancy are embedded within the trial process, there is no basis upon which applications for disclosure of material as to prior events, outside of convictions which is an exception at common law, could logically be adjudicated differently. The core concepts are potential relevance, impact as to the view that a jury might take on hearing about a previous incident, privacy and limitation on the inhumane undermining of character. A logical balance must be maintained in a criminal trial. It is clearly the case here that this complainant tangentially mentions that she has, in the past and outside the context of these charges, been the victim of the abuse of her most intimate rights: the conviction of her uncle in relation to offences of sexual violence against her and against others is on record; DPP v TF [2021] IECA 120. Therefore, for the defence to seek to allege that another relation was the subject of an allegation that was not pursued but to leave out the record of conviction that shows the truth of that complaint would enable re-examination by the prosecution.

70. Counselling records are especially provided for by law and here, again in the absence of the jury, as with issues as to prior sexual experience, the person counselled (who is almost invariably a person complaining of sexual violence against them) has a right to be heard. The choice of counselling records is specific. Considerations of relevance, sufficiency of existing disclosure, privacy as to fundamental aspects of life and remoteness from issues in a trial already come into consideration where any record is under consideration for disclosure to the defence, but there are additional considerations where a witness has been counselled. 71. The Oireachtas has legislated to restrict intrusions into the especially sensitive relationship between a counsellor and the person who says he or she has been the victim of a sexual offence. Those against whom a crime of sexual violence, and other crimes, has been committed will feel a deep sense of personal violation. Seeking help may be crucial to some sense of restoration. Of course, it may be that counselling is engaged in as a charade where an allegation is false: that is something a judge will be alive to.

72. Central to the counselling relationship is the reposing of trust, the freedom to speak, to perhaps be mistaken in recollection and in perception, and also to expect that the counselling space will not be transformed into analysis by lawyers; see Jaffee v Redmond (1996) 518 US 1 which recognised such a privilege on a public interest basis for the first time. As Simon O’Leary perceptively pointed out in ‘A Privilege for Psychotherapy – Part 2 (2007) 2 Bar Review 76, those counselling clients who have suffered from the vicissitudes of life are neither stenographers nor lawyers, but rather note impressions randomly and without structure. He also cast doubt on the probative value of any such record since “it is only an abstract expression of the patient’s feelings and emotions”. To turn therapy records that have come into existence in circumstances of addressing trauma into apparent facts in a courtroom setting may be a misrepresentation. Of course, the traverse of supposedly prior inconsistent statements has been the stock-in-trade of cross-examination over decades. Among the secondary effects of cross-examination along these lines is the likely contribution to high rates of attrition in the reporting and prosecution of sexual violence; Law Reform Commission, Report on Disclosure and Discovery in Criminal Cases (2014).

73. Where in a disclosure application, counselling notes are sought, at issue are the records of a "competent person", which in s 19A of the Criminal Evidence Act 1992, as inserted by s 39 of the Criminal Law (Sexual Offences) Act 2017, is defined as someone who “has undertaken training or study or has experience relevant to the process of counselling”; a deliberately wide definition. As is "counselling" which, whether for remuneration or not, is defined as “listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person”. A "counselling record" is also widely defined as meaning “any record, or part of a record, made by any means, by a competent person in connection with the provision of counselling to a person” but only “in respect of whom a sexual offence is alleged to have been committed” which the prosecutor is aware of and in respect of which the person counselled would have had “a reasonable expectation of privacy”. What should be noticed from the wording of that section is that the rights inure to the benefit of the person counselled. These rights are, as in this case, habitually waived through the complainant being presented with a document asking her, or him, to waive those rights. Similarly, very private records of a complainant or witness may also be disclosed with no recourse to proper advice or even sight of what it is proposed to hand over. A better procedure is to enable advice to those who have been counselled in consequence of sexual violence and that they should examine and consider what is to be disclosed. A similar consideration must surely apply to those whose private life is to be significantly intruded upon in consequence of the disclosure process. As regards counselling records in the context of sexual violence, the protection of rights is first granted by statute and then expunged. Hence s 19A provides:

(2) In criminal proceedings for a sexual offence the prosecutor shall notify the accused of the existence of any counselling record but shall not disclose the content of the record without the leave of the court given in accordance with this section. (3) An accused who seeks disclosure of the content of a counselling record may make an application (‘disclosure application’), in writing, to the court—

(a) providing particulars identifying the record sought, and (b) stating the reasons grounding the application, including grounds relied on to establish that the record is likely to be relevant to an issue at trial.

(4) An accused who intends to make a disclosure application shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the counselling record, the complainant, the prosecutor and any other person to whom the accused believes the counselling record relates of his or her intention to make the application.

(5) Where no disclosure application has been made by the accused in respect of a counselling record under subsection (3) and the prosecutor believes that it is in the interests of justice that the record should be disclosed, the prosecutor may make a disclosure application in writing to the court.

(6) Where the prosecutor intends to make a disclosure application under subsection (5), he or she shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the relevant record, the complainant, the accused and any other person to whom the prosecutor believes the counselling record relates of his or her intention to make the application.

(7) The court may, at any time, order that a disclosure application be notified to any person to whom it believes the counselling record may relate.

(8) The court shall hold a hearing to determine whether the content of the counselling record should be disclosed to the accused and the person who has possession or control of the counselling record shall produce the counselling record at the hearing for examination by the court.

(9) The person who has possession or control of the counselling record, the complainant and any other person to whom the counselling records relates shall be entitled to appear and be heard at the hearing referred to in subsection (8).

74. This is followed by s19A (17): “This section does not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a counselling record without leave of the court.” It may be commented that the importance of protection of counselling records is acknowledged, and ostensibly protected, by the legislation. The waiver provisions surely require both care and advice in order for rights to be properly protected. In that process of waiver, a complainant or other witness has no statutory right to separate legal representation: while, if the matter goes to court, she or he does. Care is required so that such waivers are not routine or under-advised. This is especially so since a wide group of criteria upon which a judge is to rule is set out in s 19(A)(10) of the 1992, so that in determining “whether the content of the counselling record should be disclosed to the accused”:

(a) the extent to which the record is necessary for the accused to defend the charges against him; (b) the probative value of the record; (c) the reasonable expectation of privacy with respect to the record; (d) the potential prejudice to the right to privacy of any person to whom the record relates; (e) the public interest in encouraging the reporting of sexual offences; (f) the public interest in encouraging complainants of sexual offences to seek counselling; (g) the effect of the determination on the integrity of the trial process; (h) the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant including the nature and extent of that harm.

75. Turning to the facts in this case, it is unknown if there are any counselling or medical, or any kind, of records, or if any of same might be of potential interest, in relation to 1) the man who, she says, raped her at a party in England perhaps in the 1990s, or 2) anything beyond her unredacted main statement in this case which mentions her other uncles who was not prosecuted, or 3) anything to do with the sexual violence against her as a young girl in a laneway in Skerries, 4) any other imposition. Some notes, as requested, perhaps refer to health issues. Should same exist, then privacy issues would arise. Despite not being counselling notes, intrusion into private medical records of a complainant or witness is a serious imposition which should not be ordered unless what is to be disclosed is relevant to a central issue in a case.. But how is it that such a possible counselling record, subject to s 19A, or a complaint in writing or orally to a police officer, or perhaps some entry of despair in a childhood diary or what is said to a doctor is somehow to be of relevance to a central issue in this trial?

76. There is a two-part test set out by the Supreme Court of Canada by a 4:5 majority in R v O’Connor [1995] 4 SCR 411 (Lamer, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major JJ). At the first stage, the defence must demonstrate the likely relevance of what is sought; defined as “a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”. If the records passed the first stage of production, they were to be released to the trial judge to determine whether they should be disclosed to the accused. It is only at the second stage, the majority held, that the privacy interests of the complainant and record holder are to be considered.

77. Privacy, whether under Article 21 of the Victims Directive or as the upholding of human dignity under Article 40.3 of the Constitution, remains a central consideration, apart from any protection afforded to counselling records for a complainant in a sexual violence case. Where it is reasonably possible that there is a real connection to an issue at trial, the trial judge deciding on either disclosure for trial purposes or controlling the trial, should remember that fundamental intrusions into the privacy of a complainant or other witness should only be ordered where that encroachment will realistically assist the administration of justice and is otherwise unavoidable.

78. Finally, the statutory scheme should be recalled as to jurisdiction. It is to be noted that the duty of deciding on disclosure of counselling records in a sexual violence case is cast on the trial judge, which, of course, includes a judge on a preliminary hearing. That duty is not, and cannot be, in terms of the definition in s 19A, on any High Court judge hearing a judicial review application to stop a trial or to review a decision made by a lower court. Only the most radical refusal to order disclosure, a decision made to fly in the face of fundamental reason and common sense, would enable the High Court to overturn the decision of the trial judge. Even there, the case should revert to the court of trial so that a proper analysis could be made. Court is defined as “the Circuit Criminal Court or the Central Criminal Court”. This rules out applications to stop a trial by way of judicial review because of non-disclosure or limited disclosure since the duty in that regard is on the trial judge and that duty continues as an active part of that judge’s responsibility throughout the trial process. Judicial review after a preliminary ruling can only succeed if that ruling is so unreasonable as to defy good sense.

This case

79. Here, a wide range of records have already been produced. The gravamen of the application on this judicial review is that this Court should stop this trial by way of a prohibition order. It is posited that if the complainant has felt that in the past she has been abused by a range of people, and that if such opinions as she holds can be demonstrated to have been false as against the other uncle (the one who was not convicted), the man in England, the people in the lane, then these events from the past may raise a reasonable doubt that the complainant is unreliable and is prone to making imaginary allegations directed at a wide range of people, which category includes this accused.

80. Normally, cross-examination proceeds without notice of the topics to the witness. As a matter of course, here there has to be notice since, whether by consent or not or whether a child or not, being subjected to sexual violence must come within the wording of s 3(1) of the 1981 Act as amended as “any sexual experience of a complainant” which was prior to this series of incidents alleged against the accused. That includes indecent assault as the offence of sexual assault was then named. Hence, the trial judge will have notice of any question and the complainant will be represented as to any application in the absence of the jury.

81. The accused knows that other allegations were made, at least one of them already proven, and that any such strategy is likely to make the conviction of the other uncle relevant to re-examination. As to whether to make such an application is for the accused to decide; the adjudication of whether any further disclosure is needed is a matter for the trial judge.

82. Applications must be adjudicated on the basis of reality. If it were the case that, for instance, a complainant made an allegation against another person and then confessed to its untruth that might mean that a trial would take a different course. But, here, it is not in any way proximate that as a small girl the complainant was subjected to unwanted sexual attention of a non-specific kind several decades ago. If the two boys from the lane were found, is cannot realistically be expected that they would be available as witnesses or would do anything other than deny the allegation.

83 It is defying reality that the man in England, at a span of several decades, would be found and would traduce the character of the complainant on the basis of innocence of an allegation apparently never followed through on. As the complainant and the accused are cousins, there is already a source of knowledge as to the identity of the convicted uncle and of the such other relatives who were not proceeded against. Even were judicial review available on disclosure issues, which legislation places as the responsibility of judges of trial, it would fail here. 84. Every court ruling must be made on the basis of good sense and with a shrewd apprehension of the effects of the order and the reason that an order needed to be made because compliance was considered essential to the judicial oversight that guarantees a fair trial. Section 6 of the Criminal Procedure Act 2021 enables the making of a range of appropriate orders prior to trial. The scope of the necessary jurisdiction extends through s 6(8)(f) to the court of trial making any order “relating to the conduct of the trial of the offence concerned as appears necessary to the court to ensure that due process and the interests of justice are observed”. In addition, through s 19A the Criminal Evidence Act 1992, as inserted by s 39 of the Criminal Law (Sexual Offences) Act 2017, a range of protections of the alleged victim of a criminal offence have been clarified.

85. In so far as counselling records of any kind may be concerned, that responsibility cannot devolve to this Court on judicial review. It is a matter for the trial judge. In so far, however, as the accused asserts that there has been such a fundamental denial of justice that no trial should take place, that is not established. Instead, the legislation requires that any complaint as to unfairness should be for the trial judge to remedy.

Resolution of the issues

86. Disclosure proceeds as a largely undisputed process in the majority of cases coming before the criminal courts. That is entirely appropriate. Both sides know that it is the duty of the prosecution to produce to the defence whatever may assist in a realistic exploration of the accused’s guilt or innocence at trial. But, the prosecution may not have access to everything of genuinely potential relevance; foreign agencies may be thought to hold records or, as here, the complainant may eventually come to the conclusion that enough is enough. Proper disclosure is part of the responsibility of the trial judge, which includes any judge making a preliminary ruling in aid of a fair trial. Such issues are not properly to be diverted through a pre-trial, or preliminary hearing, application for judicial review.

87. It having been necessary to enter a thicket of legal authorities to consider the significant issues in this case, it may be appropriate to answer the issue posed in the Determination issued by this Court in giving leave for a further appeal, noting that the detailed reasons are in the text of this judgment, and to offer such observations as will assist the trial judge in the discovery application:

(1) It is only in the clearest of cases that it will be appropriate to seek judicial review to prohibit a trial on the merits from taking place because of an allegedly erroneous ruling as to disclosure prior to trial. Such cases will be exceedingly rare. Where disclosure of information (including documentation) (whether from a witness or from the prosecution) is concerned, the proper place for those matters to be resolved will almost invariably be at either a preliminary trial hearing pursuant to s 6 of the Criminal Procedure Act, 2021, or during the trial of the offence. The trial court has specific powers at common law and by statute to deal with applications for such disclosure having regard to any competing rights of an alleged victim of crime or other witness, including unwarranted intrusions into privacy and any statutory considerations, and those of an accused subject to the obligation on the trial court to ensure a trial in due course of law under Article 38.1 of the Constitution.

(2) It is within the competence of criminal procedure for a request for information to be made by the defence to the prosecution. The prosecution must do what it reasonably can to produce information that may realistically assist the defence case or undermine the prosecution case. But the prosecution must not produce information to the defence in a manner contrary to any provision conferring statutory rights upon a person alleged to be a victim of a crime, including a crime of sexual violence. It should always be born in mind that there are limits in terms of good sense, based on remoteness and relevance, as to what is germane in any case. There are, furthermore, also limits to the authority of the prosecution to gather information. Where a complainant, or other witness, refuses to give information, this is not within the procurement of the prosecution. The absence of information crucial to a fair trial may be a factor for the trial judge as to whether a trial in the absence of such information can be a trial in due course of law.

(3) An alleged victim of sexual violence, the complainant, is entitled at trial, and it must follow in requests for disclosure prior to trial, to be protected from enquiry into prior sexual experience, which can include any prior sexual offence against them. Disclosure of material as to prior sexual experience is impacted upon by the rules in s 3 of the Criminal Law (Rape) Act 1981 as amended as to the questions that may be asked and evidence that may be adduced. Hence, prior to trial, disclosure as to prior sexual experience cannot be ordered by a trial judge unless the enquiry can be shown to have a material impact on the trial of the central issue in such a case, usually either consent or, for under-age prosecutions, whether any sexual contact occurred. This may necessitate a judge making an order pursuant to s 3 of the Criminal Law (Rape) Act 1981 as amended at a preliminary hearing carried out pursuant to s 6 of the Criminal Procedure Act, 2021. On such an application for disclosure prior to trial, the information sought must be demonstrated to be more than a mere enquiry into credibility but, instead, shown to impact reasonably on the possibility that a false allegation of sexual violence is being made. Issues of the admissibility of material in respect of which claims to privilege, or confidentiality, are asserted, including material held by third parties are most suitably determined by pre-trial hearing and not by judicial review. For the avoidance of doubt, since the issue has again arisen on this appeal, renaming indecent assault as sexual assault has not taken either out of the scope of the applicable legislation. It is one offence.

(4) The criteria to be applied in disclosure applications are those of: 1) relevance, materiality and remoteness; 2) the exclusion of information which is to be deployed only to blacken the character of a complainant on the basis of prior sexual activity; 3) the primary privacy entitlement of a witness to any counselling record in the light of the criteria set out in s 19A of the Criminal Evidence Act 1992, as inserted by s 39 of the Criminal Law (Sexual Offences) Act 2017, where the allegation is one of sexual violence; and the right of witnesses to privacy where unnecessary intrusions of a fundamental kind are sought to be made into matters which are not central issues in a case. While statutory rights as regards counselling records in a sexual violence case can be waived, it is incumbent on the prosecution to ensure that before such a waiver, the complainant or other witness is properly advised. A similar duty attaches to the waiver or information related to fundamental aspects of privacy.

(5) Privacy is part of the criteria to be considered in disclosure applications, but there is no counselling exception, or psychotherapeutic privilege, to an application for information, beyond the statutory criteria set out for sexual violence in s 19A of the 1992 Act, as inserted by the 2017 Act. It should be noted that the Criminal Justice (Victims of Crime) Act 2017, s 15 and s 19, place a responsibility on the gardaí and the Director of Public Prosecutions to have regard to privacy issues where a person has been identified as having specific protection needs; see 21 regarding questions of the victim in respect of their private life, a matter specifically referred to in s 19. Issues involving serious intrusion into private life (which are not directly relevant to the alleged offence) are not generally subject to disclosure unless directly germane to an issue in a case. . That would mean that even the references by this complainant, or any other witness, to past experiences of abuse may not automatically be disclosable or, if disclosable, are protected not only by s 3 of the 1981 Act as amended but also by s 21 of the 2017 Act. This is a matter for the trial judge and not for judicial review.

(6) It is always necessary for a trial judge to ensure a trial in due course of law, as required by Article 38.1 of the Constitution. A trial becomes unfair where, on a reasonable assessment, a real opportunity is lost to put a credible defence case as to fact. Consequently, a trial judge is cloaked with the authority to make such orders as will uphold that constitutional imperative. Focus on the central issues is the imperative for any criminal trial. A fair trial is in danger of being undermined through the consideration of irrelevant material. A trial in due course of law should not involve spurious applications or arguments which aim to divert the trial process from examining the central issue before the court; which is whether the prosecution have met the burden of proving the case beyond reasonable doubt.

(7) In disclosure applications, the responsibility is on a trial judge to ensure that fair trial. The trial judge has the ongoing responsibility both before and during the trial to ensure that such information as will enable a fair trial is furnished to the defence. The prosecution also has that duty and this continues throughout the criminal process in respect of any information or documents which may enable a credible defence case to be put.

(8) The defence should not be restricted from asking a relevant question in aid of the accused. It can be that because of the restrictions on asking questions or calling testimony as to prior sexual experience applicable to sexual violence cases, that what is a legitimate enquiry of a witness may mistakenly be ruled out. This issue may best be approached by analysis based on a neutral example. Hence, if in a witness statement, the victim of a criminal offence mentions other crimes committed against them in the past, it might be legitimate to ask why such alleged crimes were not reported. That can possibly lead to a question as to whether that non-reporting was because of the infirmity of the allegation or because of imagination. Pursuing such a line of questioning and the consequent potential revelation of crimes which have been prosecuted in the past is a matter for decision by the defence, subject to the permission of the trial judge where s 3 of the 1981 Act as amended applies.

(9) The responsibility of deciding disputes on disclosure is on the trial judge and this is an ongoing responsibility throughout the whole of the trial. The primary responsibility to gather information and to disclose what is relevant, subject to statutory rights which may require an application to court, is on the prosecution.

Result

88. Consequently, this appeal against the refusal to grant judicial review is dismissed.