IEHC 89 — IEHC 89 — High Court

THE HIGH COURT JUDICIAL REVIEW [2026] IEHC 89 Record No. 2025 332 JR

BETWEEN

M. APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 19th day of February, 2026.

INTRODUCTION

1. The Applicant stands charged of one count of sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 (as amended). The offence is alleged to have occurred on the 15th of November, 2008. In these proceedings, the Applicant seeks an order of prohibition or, alternatively, an injunction halting the criminal process. He argues that extreme delay resulting in prejudice to his defence and health impacts make a fair trial impossible. The Order made ex parte at leave stage (Simons J.) prohibiting the publication or broadcast in any format of any material such as would identify the Applicant is continued in light of the nature of the alleged offence and the right to

1 anonymity of the Complainant who is not a party to these proceedings. Care has been taken not to identify the Complainant or the Applicant in this judgment.

BACKGROUND

2. The Complainant was a close friend of the Applicant’s wife and was bridesmaid at the Applicant’s wedding. The alleged sexual assault occurred at the Applicant’s home on the occasion of an overnight visit by the Complainant and her sister with the Applicant and his wife at their three-bedroom apartment. On the night in question the Applicant retired to bed intoxicated, earlier than the remainder of the party. She claims that she awoke to find the Applicant perpetrating a sexual assault upon her.

3. Although the Complainant disclosed the alleged incident within days to friends, including the Applicant’s wife, her sister and her then boyfriend, she made no complaint to Gardaí until May, 2016 (7.5 year reporting delay). Ultimately, her report to Gardaí was prompted by seeing media coverage of the Applicant’s unrelated conviction (2 year sentence suspended for 3 years) for sexual assault of his niece (3 counts) many years earlier when both the Applicant and his niece were minors (she was under ten years of age).

4. The following chronology appears from the papers:

15 November 2008 – Alleged sexual assault.

November 2008 – Complainant discloses allegation to sister and friend.

27 November 2008 – Email exchange between Applicant and Complainant (includes apologetic/acknowledging statements).

May 2016 – Complainant makes formal Garda complaint.

July–October 2016 – Gardaí take multiple witness statements (sister, boyfriend, friend).

October 2016 – Investigating officer promoted; diverted to major organised crime investigations.

2 June 2019 – Applicant undergoes major abdominal surgery (laparotomy and colostomy).

May 2021 – Investigating member retired.

May 2021 – File reassigned to Garda Nulty after officer retirement.

June–August 2021 – Further witness statements obtained.

September 2021 – Applicant attends voluntary cautioned interview; declines to answer questions.

March 2022 – Applicant arrested and interviewed. He exercises right to silence. The Applicant diagnosed with immune thrombocytopaenia.

August 2024 – File sent for DPP directions.

August 2024 – Applicant undergoes bowel surgery.

September 2024 – DPP directs that the Applicant be charged.

November 2024 – Applicant charged with sexual assault and admitted to bail.

3 December 2024 – First District Court appearance.

13 December 2024 – Book of Evidence served. The Applicant sent forward for trial.

19–20 December 2024 – Defence issues disclosure request.

14 February 2025 – Follow-up request seeking urgent disclosure.

3 March 2025 – Notice to DPP of intention to seek judicial review.

10 March 2025 – Additional disclosure provided.

11 March 2025 – Judicial Review application filed.

7 April 2025 – High Court grants leave to proceed by way of judicial review (Simons J.).

ISSUES

5. The Applicant argues that there has been inordinate, excessive and unexplained delay resulting in prejudice to him. He claims the delay makes a fair trial impossible on

3 cumulative grounds including the fact that the Complainant now suffers from fibromyalgia, a condition allegedly affecting memory in circumstances where there are inconsistencies in early accounts. He maintains that there was also a lost opportunity to investigate or gather records between the period 2016–2021 following the report to Gardaí. Furthermore, he claims his own medical conditions and psychological deterioration (including surgeries, stress, anxiety, and suicidal ideation) have worsened due to the prolonged process. He argues that a trial at this remove would be in breach of his constitutional rights to a trial in due course of law and to expedition.

6. The Director of Public Prosecutions (hereinafter “the DPP”) opposes the application on several grounds. Firstly, it is contended that delay is explained and not culpable. It is contended that reporting delay was outside Gardaí control and Gardaí delays were due to resource constraints and major crime investigations. In terms of the prejudice alleged, it is contended that issues of memory, inconsistencies, or missing evidence are matters for the trial judge, not for judicial review and the question of prejudice is speculative at this stage.

7. The DPP relies on a long line of authority in support of their position that the trial court is the proper place to address fairness. The Respondent maintains that the prejudice identified is not manifest, unavoidable and exceptional and does not warrant the exercise of a rarely exercised discretion to prevent a trial proceeding. It is further contended that stress and anxiety must be extraordinary and causally linked to delay to justify prohibition and this threshold is not met in this case. Reliance is placed on a 2008 email from the Applicant to the complainant which includes statements interpreted as admissions or acknowledgements, a factor which the Respondent identifies as weighing against the grant of the relief sought.

EVIDENCE

8. These proceedings were grounded on two affidavits sworn by the Applicant and several affidavits sworn by his solicitor.

9. In his initial verifying affidavit sworn in March, 2025, the Applicant outlined his health problems stating that he suffers significant anxiety and stress as a result of the

4 allegations. He said he underwent two major bowel surgeries in August 2024 due to complications with a colostomy bag and that he was reliant on an ileostomy bag, facing further surgery and requiring regular hospital attendance. He confirmed his belief that the stress of a trial would harm his health.

10. He maintained that it was unfair to prosecute him 16 years after the alleged 2008 incident, pointing out that he has always lived openly at a known address and was readily available to Gardaí. He confirmed his belief based on the long silence that followed first disclosure of the relevant allegations that he would not be prosecuted.

11. In a subsequent affidavit sworn in reply to opposition papers in November, 2025, the Applicant outlined what he considered to be his exceptional medical vulnerability and the prejudice he contended to be caused by delay. He claimed that the prosecution’s conduct aggravated his medical and psychological decline. Extensive medical evidence was exhibited (Exhibits DF1–DF6) showing major medical conditions as follows:

(a) Diverticulitis and colovesical fistula diagnosed 2017. (b) Left with a colostomy bag for 6 years due to complications and COVID-19 delays. (c) Immune thrombocytopaenia diagnosed 2023; required steroids. (d) Recurrent internal bleeding, requiring hospital admissions and transfusions. (e) Two complex bowel surgeries in August 2024; prolonged immobility and significant weight loss. (f) Recent reversal of ileostomy bag left him still extremely vulnerable.

12. In addition, he adduced mental health evidence in the form of GP records from 2013– 2014 which he relied on as showing severe stress, panic symptoms, suicidal ideation and prescription of Xanax due to emotional instability related to legal issues. He also relied on clinical notes from 2023–2024 to show mental deterioration due to stoma, chronic pain, and stress of impending prosecution and recurrent suicidal thoughts. He sought to make a link between health decline and prosecution delay contending that the 5-year period (2016–2021) when Gardaí took no steps coincided with his most serious

5 physical and psychological deterioration. He claimed that stress from “uncertainty” about whether he would be prosecuted worsened his conditions.

13. Having recited the procedural and investigative delay following the delayed reporting of the allegation in May, 2016 until charge in November, 2024, the Applicant asserted that he had been prejudiced by delay contending that his own memory of events was degraded, pointing out that the Complainant has fibromyalgia, causing short-term memory issues, reducing reliability and undermining cross-examination and referring to the fact that witness statements were taken 8–10 years after the event, making inconsistencies impossible to investigate.

14. In responding to the allegation, he reaffirmed that he was never in the bedroom and never alone with the Complainant. Referring to his 2008 email apologising “for whatever happened” he explained that this was written while in mental turmoil, doubting himself, and under the impression something might have occurred that he could not remember due to intoxication. He maintained that this email was not an admission.

15. The Applicant’s solicitor swore four separate affidavits in these proceedings (notably the 12th of March, 2025, the 26th of March, 2025, the 10th of November, 2025 and February, 2026). Solicitors’ evidence centred on delay, disclosure failures, procedural history and prejudice to the defence. The evidence from the Applicant’s solicitors included a review of the Book of Evidence, reference to correspondence with the DPP and communications with Gardaí, much of which was exhibited.

16. From the Complainant’s statement as contained in the Book of Evidence, it is claimed that she went to bed drunk, wearing pyjamas and underwear. During the night she claims she was sexually assaulted, including by touching of her vagina. She recognised the Applicant as the assailant. She told no-one that night but disclosed the incident to her sister and a friend within days. She also told her then boyfriend the next day that her friend’s husband had assaulted her. She asked him not to tell anyone due to fear of repercussions. All three made statements confirming that the Complainant told them about an assault shortly after the event in 2008.

6 17. Separately, the Applicant’s wife made a statement in which she remembered drinking heavily that night and confirming that the Complainant disclosed an allegation of abuse by her husband to her several days later, but the Applicant had “denied recollection of any of this”. She confirmed that the Applicant was later found at a hotel with whiskey and pills. She confirmed that she emailed the Complainant offering to pay for counselling.

18. The Book of Evidence includes several emails between the Complainant and the Applicant’s wife in which reference was made to what happened. In this correspondence, the Applicant’s wife expresses shock and offers counselling support. She describes finding the Applicant in a suicidal state.

19. The Book of Evidence contains further emails between the Complainant and the Applicant dated the 27th of November, 2008 at 13.54 wherein he apologised for “whatever happened” and maintained that he could not remember anything. In the email he stated, inter alia:

“All I can say is that I am completely disgusted from what I did”

before going on to say:

“I would never, ever do anything like what I heard described back at me intentionally. I just cannot comprehend what the fk happened…! I know being ridiculously drunk is no excuse, not in the slightest, but all I can ask is that you take me on what you’ve known in the past, and that I am a good person I would never do that to you, but especially to X., and to think where and when it happened, it still defies belief to me, I literally cannot wrap my head around it! To know you must have been going through hell after, and I am so so sorry for putting you in that position….I hope you can forgive me some day.”

7 20. The Complainant replied by email that same day at 16.08 saying:

“I can’t forgive you for what you did, the position you put me in and how you made me feel. I think that you should go and see someone to investigate why you would do what you did and maybe in time I may be able to get over it all in some way ….”.

21. The Applicant’s wife forwarded the text of an email received from the Applicant to the Complainant in which he said:

“Babe, I’ll be gone by the time you get home this evening…! I honestly don’t know what the f*ck is wrong with me, I mean I don’t remember doing anything but obviously I did….I just can’t believe it!! And you’re right, I promised you tht I’d never hurt you again, and I did, so if you want me gone for good, you’re perfectly entitled to it….I am absolutely sick as a dog, I mean what the hell like…!! Worst of all I’m actually surprised with myself, I mean I’m obviously a sick f*ck but I honestly thought that I wasn’t …to do that, whatever it was, in our home, next door to you, with your best friend….I mean there’s just no explaining that, there’s a fuse in my brain that’s gone or something….I just don’t know.”

22. In an email to the Applicant’s wife on the 25th of November, 2025, the Complainant said:

“I can’t have him in my home.. and obviously me staying in your apartment is definitely not going to happen again…..I couldn’t put myself in that position ever again.”

8 23. As further apparent from the Book of Evidence, when the Applicant was interviewed in 2022, he largely made no comment during interviews beyond providing a prepared statement asserting he was “never in the bedroom” with the Complainant at any point. In his prepared statement he stated that he believes there was “fun” and heavy drinking but denies the assault. He said the apology email was an attempt to “smooth things over” after doubting his own recollection due to intoxication.

24. Each of the two guards involved in the investigation swore affidavits on behalf of the Respondent.

25. Inspector Michael Mulligan (retired) focussed on explaining the delay in the Garda investigation between 2016 and 2021 and rejecting any suggestion of bad faith or deliberate inaction. Inspector Mulligan’s affidavit states that although he took initial investigative steps in 2016—including gathering multiple witness statements—his subsequent promotion and transfer to Mountjoy Garda Station, where he became immersed in major gangland investigations (including the Regency murder), prevented further progress on the Applicant’s case. He maintains the delay was due to extraordinary operational pressures, not neglect or bad faith, and that once he retired in 2021, the file was reassigned to Garda Nulty.

26. Garda Laura Nulty’s affidavit explains that she inherited the investigation in 2021 after years of delay caused by the Complainant’s late reporting and the retirement and workload of the previous investigating officer. She details how she then obtained further statements, conducted two interviews with the Applicant, pursued digital evidence (including under a section 63 order), and submitted the file to the DPP, leading to a charge in November, 2024. She maintains that all relevant material has been disclosed, that the delays were not deliberate, and that the evidence remains intact such that any issues about witness memory or credibility are matters for the trial court—not grounds to prohibit the prosecution.

27. On the date of hearing of these judicial review proceedings in February, 2026, an application was made on behalf of the Applicant to admit a fresh affidavit sworn the previous day exhibiting a medical report from the Applicant’s treating GP based on an assessment carried out on the 12th of January, 2026 and received in the Applicant’s

9 solicitor’s office on the 3rd of February, 2026. Counsel on behalf of the DPP objected to this late affidavit but confirmed that the DPP did not require an opportunity to respond acknowledging that in applications of this type, the court is not concerned with a contest between doctors.

28. Given that the Applicant’s medical records had already been exhibited and his medical difficulties had been signalled as an important factor grounding the within proceedings coupled with the fact that the late filing of the affidavit would not cause a delay in concluding these proceedings, I was satisfied that it was in the interests of justice that I admit the affidavit and decide this application on the basis of the up to date medical evidence, ensuring that all matters were before the Court.

29. In the medical report provided, the Applicant’s GP confirms that at the time of the assessment, the Applicant was suffering from very significant psychological distress. He stated:

“Against a background of established vulnerability, the patient was notified in September, 2024, by An Garda Siochana, of an allegation said to have been made in 2016 relating to an incident alleged to have occurred in 2008….this notification occurred while the patient was in the midst of serious postoperative complications and ongoing medical treatment.”

30. He outlined the Applicant’s serious medical conditions and surgical complications and acknowledged that these medical issues alone had already resulted in:

“a marked adverse impact on his mental health with persistent low mood, sleep disturbance, reduced enjoyment of life and impaired coping capacity.”

10 31. The Applicant’s GP notes that the allegation made in 2024:

“reactivated psychological trauma associated with a previous conviction, which he and his family had worked over many years to move beyond. He expressed particular distress regarding the risk of public exposure, being named and the potential impact on his wife and three young daughters, whom he described as his primary protective factors and the main reason he has not acted on suicidal thoughts.”

32. The Applicant’s GP records his opinion as follows:

“In my opinion, the patient’s psychological presentation reflects severe distress. While his underlying medical conditions and their complications had already caused substantial psychological harm, the extreme delay in notification of the allegation, combined with its devastating personal and familial implications, has acted as a major exacerbating factor, significantly intensifying his distress. The impact of this notification cannot be considered in isolation; rather, it occurred at a time when his psychological resilience was already markedly reduced due to illness, pain, uncertainty, and prolonged recovery.”

33. Having summarised the Applicant’s medical history (including colovesical fistula diagnosed in 2017 secondary to diverticulosis with several surgical procedures in the intervening period and multiple hospital admissions) the Applicant’s GP concludes:

“It is therefore my view that:

The patient had pre-existing, clinically significant psychological distress attributable to his medical conditions and their complications and did have suicidal ideation expressed before he became aware of the allegation.

The delayed notification and nature of the allegation have caused a clear, additional, and disproportionate worsening of his psychological state, resulting

11 in severe emotional distress beyond that which would be expected from his medical issues alone.”

ANALYSIS AND DECISION

34. The applicable principles on applications of this nature are well established through decades of jurisprudence relating to delay in historic sexual offence cases. Irish law recognises two interrelated but distinct constitutional rights, namely, the right to a trial in due course of law (Article 38.1 of the Constitution) which includes the right to a fair trial and the right to a trial with reasonable expedition (P.M. v. Malone [2002] 2 I.R. 560, [2002] IESC 46; S.H. v. DPP , [2006] 3 I.R. 575, [2006] IESC 55). These rights can be infringed by complainant delay, prosecutorial delay or a combination of both, albeit the approach of the court is not identical in respect of the two different types of delay in a case involving a sexual assault. Complainant delay is delay between the alleged offence and the first complaint to authorities. Prosecutorial delay is post-complaint delay and includes delay on the part of the prosecution services in investigation, preferring charges, processing the file, disclosure and bringing the case to trial.

35. The dominant test on a prohibition application is whether, by reason of the delay (be it complainant or prosecutorial), there is a real or serious risk that the applicant will not receive a fair trial and whether such unfairness cannot be cured by the trial judge (S.H. v. DPP; B.J. v. DPP [2003] 4 I.R. 525, [2003] IESC 69; J.O’C. v. DPP [2000] 3 I.R. 478, [2000] IESC 58). If a real or serious risk exists which cannot be cured by the trial judge, the trial must be prohibited. Since S.H. v DPP, however, the courts no longer conduct an inquiry into why a complainant delayed, nor do they assume the truth of the complaint for delay analysis purposes. The only question is whether the delay creates an incurable real or serious risk of an unfair trial. It is contended on behalf of the Applicant that the dicta in S.H. v. DPP has no application to the facts of this case on the basis that both the Complainant and Applicant were adults at material times and it is contended that the Applicant made a decision not to make a formal complaint despite being in a position to immediately raise issues with some of her friends and with the wife of the Applicant. This submission is not supported by any authority. In the

12 circumstances, I am satisfied that as regards complainant delay, the correct approach for me remains to consider whether the delay creates an incurable real or serious risk of an unfair trial.

36. In assessing whether unfairness arises, the central inquiry relates to questions of prejudice; both specific or actual prejudice and general or presumptive prejudice. Examples of specific or actual prejudice include death or unavailability of a crucial witness (P.T. v. DPP [2008] 1 I.R. 701, [2007] IESC 39; J.O’C. v. DPP [2000] 3 I.R. 478, [2000] IESC 58; B.J.), loss of medical, forensic, text or digital records (J.D.; M.O’H. v. DPP [2007] 3 I.R. 299, [2007] IESC 12), loss of “islands of fact” objectively verifiable at the time, faded memories in a way that affects a particular line of defence and inability to test prior inconsistent statements. General or presumptive prejudice arises where delay is extraordinary and the defence has probably lost a reasonable possibility of evidence (B.J. v. DPP; J.O’C.). However, courts are slow to prohibit on presumptive prejudice alone after S.H.

37. Although the courts recognise that all old cases involve faded memory, this is not enough to warrant prohibiting a criminal prosecution unless it removes a defence or prevents testing credibility (J.D. v. DPP [2007] IEHC 40; B.J.). Where earlier accounts or investigations are lost due to delay, that may create a real risk of unfairness (B.J.; P.O’C.) but the Court must consider whether it is a risk that cannot be cured by trial judge directions. Death of Witnesses may also constitute prejudice if the witness could have provided unique, material evidence (J.O’C.; P.T.). The case-law establishes the primacy of the trial judge in assessing actual prejudice.

38. It is now established that stress/anxiety will ground prohibition on grounds of delay only where the applicant establishes “something more than the predictable levels of anxiety” caused by any criminal charge, and where such stress/anxiety is sufficiently severe, as a matter of evidence and common sense, to amount to a breach of the constitutional right to trial with reasonable expedition or to bring the case within wholly exceptional circumstances (P.M. v. DPP [2006] IESC 22, M.O’H v. DPP). The delay must be causative in terms of demonstrably exacerbating the applicant’s condition. The applicant must prove, on the balance of probabilities, that the delay creates a real risk of unfair trial. A mere assertion of faded memories or speculation is insufficient (RB v.

13 DPP [2019] IECA 48; AT v. DPP [2020] IECA 6). As the trial judge has an ongoing duty to stop the trial if unfairness materialises, prohibition by judicial review is exceptional.

39. Culpable or blameworthy prosecutorial delay does not in itself automatically give rise to an order preventing further prosecution and would rarely do so in the absence of a real risk of an incurably unfair trial being established. Nonetheless, prosecutorial delay triggers a further balancing test in cases where a real and incurable risk of unfairness is not established.

40. In conducting a balancing exercise, the court must balance the public interest in prosecution against the accused’s right to an expeditious trial (P.M. v. Malone; P.M. v DPP; McFarlane v. DPP [2008] IESC 7) and the interests of the applicant which may include additional distress that the applicant has suffered because of delay (M.O.H. v. DPP [2018] IEHC 560). The circumstances of the case should be put in the balance. Even with blameworthy delay, however, the accused must show actual impairment of defence, oppressive pre-trial incarceration or excessive stress/anxiety caused by the delay. Accordingly, the bar of the test remains high (Devoy v. DPP [2008] 4 I.R. 235, [2008] IESC 13). The existence of admissions or partial admissions cannot be ignored and is a factor which must be considered in the balancing exercise (Glynn v. DPP, Unrep. Heslin J., 2021), even where, as in this case the admissions are couched in terms as an admission and apology on the basis that the allegation is accepted even though the Applicant professes to have no memory of the night.

41. Finally, where no real risk of unfair trial is shown and no blameworthy prosecutorial delay is proven, the courts also acknowledge a residual jurisdiction to prohibit a trial where wholly exceptional circumstances make trial unjust (S.H.; P.T.). Cases in which this jurisdiction has been exercised are most rare and fact specific. In P.T., for example, the accused was aged in his 80s with severe cardiac fragility.

42. The consistent theme through the case law is that prohibition is exceptional and issues of fairness should be addressed at trial unless clearly impossible as established in cases including S.H. v. DPP, C.C. v. DPP [2019] IESC 94, PB v. DPP [2013] IEHC 401, Nash v. DPP [2015] IESC 32 and Devoy v. DPP. The test I must apply on this application therefore is whether the Applicant has shown that the delay has caused a real or serious

14 risk of an unfair trial that cannot be cured by the trial judge, or where wholly exceptional circumstances make it unjust to proceed. Where I conclude that there has been prosecutorial delay, I must also conduct the P.M. balancing exercise (public interest vs. expeditious trial and particular circumstances including additional stress and anxiety) on the basis that delay alone is not enough without prejudice or exceptional features.

Real and Incurable Risk of Unfair Trial

43. A period of 16 years delay between the alleged events and charge is significant and is highly undesirable. Despite this long period of delay, none of the witnesses are deceased and all material witnesses remain available for examination on their evidence. Furthermore, they were all adults at the time of the alleged events. None are yet elderly or demonstrating age related or other cognitive decline.

44. Although the Applicant complains that the defence is prejudiced by the fact that because of the delay in reporting the allegations because he claims it is not now possible to check the content of communications as between the: prosecution witnesses, I consider this complaint to be speculative. He maintains that such checks would give rise to a reasonable expectation of relevant material regarding inconsistencies and discrepancies as between what the Complainant is alleging and what she told witnesses at the time.

45. The Applicant’s complaint relating to material which might have evidenced inconsistencies or discrepancies ignores the fact that contemporaneous communications remain available, notwithstanding the passage of time. Documentary evidence exists in the form of email exchanges between the Complainant and the Applicant and the Complainant and the Applicant’s wife and in the form of messaging records is available. No further communications have been identified as missing. If missing communications are identified during the trial, this is a factor which can be explored at the hearing. Crucially, persons to whom contemporaneous disclosures were made are all available for examination on their recollection.

46. If there are inconsistencies and discrepancies as between what the Complainant has alleged and what the witnesses say they were told after the event, as the Applicant alleges in presenting his challenge by way of judicial review, such inconsistencies and

15 discrepancies may be explored at trial. Should an attempt be made to explain any inconsistencies and discrepancies by reference to the 8-year delay in taking the statements, as the Applicant apprehends, this is a matter which may be the subject of submissions to the judge charged with ensuring the fairness of the trial process, as appropriate.

47. Insofar as it is claimed that the defence is further prejudiced by the fact that the Applicant was not confronted by Gardaí and did not have ·an opportunity to make a statement in relation to the relevant events until 5·years after the complaint was made to Gardaí, a total of approximately 12 years after the event, it is relevant that documentary evidence exists in the form of email exchanges between the Complainant and the Applicant and the Complainant and the Applicant’s wife contemporaneous with the alleged events. Accordingly, the evidence in this case is not dependent on memory alone and the means to test oral evidence at trial by reference to what was said at the time remains available.

48. Indeed, based on his contemporaneous account as recorded in email exchanges, the Applicant claimed no memory of events even at the time. In my view, his complaint that his ability to respond to the allegations has been prejudiced by the passage of time is undermined by his asserted absence of memory immediately after the events in question. I find it significant that the Applicant has not identified any specific evidence which might have been available had there be no delay in this case.

49. Insofar as the Applicant points to his statement to Gardaí to the effect that he was not in the Complainant's room alone that night and apprehends prejudice on the grounds that he is liable to be judged to have lied to gardai if this statement is considered to be inconsistent with his seeming apology at the time of the events, I am not persuaded that any such inconsistency results in an unavoidable unfairness to the Applicant. I note that the Applicant contends that this discrepancy could be explained by the fact that, 12 years after the event, his claim not to have been in the room was an honest assertion, presumably because he now remembers not being in the room. If the Applicant has an honest belief in terms asserted to the Gardaí in his prepared statement, it is unclear to me why the Applicant considers it unfair for this to be put before a court at trial. Indeed, it seems to me that the terms of his prepared statement to the Gardaí and how those terms

16 may be reconciled with his contemporaneous apology, recorded in email communication, acknowledging the possibility that he may have been in the room whilst denying a memory of same, is classically a matter for the trial.

50. Insofar as the Applicant refers to the possibility of health-related memory loss on the part of the Complainant, it is noted that when her condition was raised with her during the investigation she attributed aches and pains and minor short term memory loss to her condition of fibromyalgia and confirmed not having received any treatment since 2014. She stated to Gardaí (page 7 of the Book of Evidence):

“my memory of that night is perfectly fine. I developed first symptoms in 2011.”

In her statement the Complainant also claimed:

“My memory of that day is unusual because I was so upset, I cannot recall things that I would normally remember. During the party I did not consume more alcohol than I would have been accustomed to drinking at the time. I never before that suffered from memory loss.”

51. While the Complainant refers to memory deficits/gaps immediately following the alleged incident and these are referenced in the Complainant's statement in these terms, she notably claims the gaps were present immediately following the incident and are not the result of the passage of time or any intervening health impairment which on her evidence pertains to short term memory. In any event, the Complainant may be examined at hearing as to the reliability of her memory having regard to factors such as, for example, her level of alcohol consumption on the night in question.

52. If the Complainant were to improperly rely on an impairment related to her health condition at trial to justify or explain discrepancies as the Applicant claims to apprehend, then the trial judge is well equipped to ensure that this is not permitted to circumvent the legitimate purpose of cross-examination in a manner which renders the trial unfair. The trial judge has powers to safeguard the fairness of the process should

17 some unfairness materialise during the hearing as regards the Complainant’s memories or any other factor.

53. Finally, insofar as the Applicant relies on his significant health issues, including anxiety and stress related to these proceedings to seek to avoid trial based on a real risk of unfairness of trial, I accept that the Applicant has ongoing, serious health issues. I am satisfied, however, that there is nothing in the evidence to suggest that he would be unable to effectively participate in a trial or that his required participation would precipitate a serious deterioration in his health by reason of the maintenance of this prosecution to its conclusion. The trial judge is equipped to ensure that all necessary and reasonable accommodations are afforded to the Applicant to ensure that he may remain physically present in court being fit to instruct his legal team and participate fully for the duration of any trial.

54. On the facts of this case, I have not been persuaded that a real and incurable risk of interference with rights of defence have been established and that there exists an insurmountable barrier to fairness of trial.

Whether Delay is Explained and Non-Culpable.

55. Applying S.H., I make no enquiry into Complainant delay in this case in circumstances where it has not been established that the overall period of delay between 2008 and 2024 results in a real and incurable risk of fairness at trial. I accept, however, that the fact that there had already been Complainant delay when the first complaint was made to Gardaí remains relevant in assessing investigative and prosecutorial delay after the complaint is made. In Connolly v. DPP [2009] IEHC 526, McCarthy J. stated (para. 30):

"There is no doubt but that greater expedition is required in a case of antiquity or where, either because of antiquity or the age or state of health of an accused, a delay might cause greater stress or anxiety or otherwise infringe one of the interests protected by the right to an expeditious trial".

18 56. By any reckoning the Garda investigation after the 2016 complaint was made progressed slowly. The Applicant was first interviewed on the 29th of September, 2021 (voluntary cautioned memorandum), arrested and interviewed on the 24th of March, 2022 and charged 7th of November, 2024. The Book of Evidence was only served the 13th of December, 2024, more than 8 years after an already late complaint was made. The investigation was not complex and involved the taking of statements from readily available witnesses. While reliance is placed on operational constraints and a need to prioritise on the part of the investigating Garda member, it seems to me that the delays were excessive. Delays of this magnitude cannot be excused in a non-complex investigation by reason of pressures of work on the individual garda who had been originally assigned the investigation file, particularly when Garda delay followed upon existing Complainant delay and when the file could have been reassigned in light of the pressures of work and legitimate work priorities of the investigating member.

57. No explanation has been given for the delay in reassignment of the file until after Garda Mulligan’s retirement. I am satisfied that this is a step which ought to have occurred when it became apparent that Garda Mulligan’s work schedule and priorities meant that he was unable to progress the investigation in this case in an expeditious manner.

58. In view of my finding of blameworthy or unexplained delay which I am satisfied transgresses the Applicant’s right to expedition as a component of his due process rights, it is necessary to engage in a balancing exercise and, in this context, to assess the prejudice alleged by the Applicant for the purpose of deciding whether a jurisdiction to restrain further prosecution on foot of the Complainant’s allegations should be exercised notwithstanding a strong countervailing public interest in the prosecution of sexual crimes.

Whether Prejudice established

59. The Applicant claims that the long delays, both the Complainant’s delay in reporting (7.5 years) and the Garda/prosecutorial delay (2016–2024), have created actual prejudice and substantial risk of an unfair trial, such that the prosecution should be prohibited. In circumstances where this case does not entail any issue of pre-trial

19 incarceration, the Applicant relies on four main categories of alleged prejudice which weighed together with a breach of his right to expedition and the nature of the offending behaviour, he contends makes the further prosecution of the Applicant unfair as a disproportionate interference with his umbrella rights to due process.

60. Firstly, he relies on prejudice from the Complainant’s medical condition (Fibromyalgia), a condition which can involve memory issues. He argues this affects her reliability and recall, harming his ability to challenge her account effectively at trial. He maintains that effective cross-examination depends on the witness having a stable memory of events. He claims that if her memory is affected by illness, then any inconsistencies become harder to probe or contextualize. In advancing this claim, he refers to her diagnosis and reference to memory problems in medical history. He identifies alleged inconsistencies in the complaint evidence given to multiple people (sister, friend, Applicant’s wife), which he claims are harder to test due to fading memory over time.

61. Secondly, the Applicant relies on fading memories and a lost opportunity to investigate maintaining that the five-year delay after the 2016 complaint caused significant prejudice because he lost the ability to engage early with the allegations and he could not investigate or gather contemporaneous records (messages, phone data, travel records, medical records). He is not specific as to what contemporaneous records there might have been beyond the material already disclosed. While a complaint was not made to the Gardaí in 2008, the Applicant was aware of an allegation from that time. Were there contemporaneous records which might have helped him, he could have sought them out then. Instead, he did not deny the allegation but merely claimed not to remember what he had done without any reference to any matter which contradicted the truth of what was being alleged. Everyone present on the night in question is available and each person has provided a statement. It is not clear what relevant records the Applicant contends might have been available had the complaint been made earlier.

62. He also maintains that potential third-party witnesses (friends present in 2008/2009) may now have forgotten details or become unavailable. He does not identify any person who has become unavailable. Insofar as witnesses who have prepared statements suggest that they cannot remember details, any lack of recollection of detail can be

20 explored at the trial and the trial judge may make directions to safeguard the fairness of the trial process. The Applicant further complains that any discrepancies arising in accounts collected long after the incident become impossible to test with precision where memories fade naturally, particularly across 16+ years from the event but again, the question of memory fade, is a question which is capable of being explored at trial. If the trial judge is concerned about prejudice arising from fading memories by reason of delay, that judge may make appropriate directions tailored to counterbalance any prejudice as the trial unfolds.

63. For reasons already addressed above in the context of my consideration of whether there is a real and unavoidable risk of unfairness of trial, the case made under these first two heads of prejudice is not compelling. I consider each head of prejudice identified speculative and non-specific. Insofar as there are inconsistencies as between statements, I do not accept as established that these cannot be effectively tested during a trial. It should be recalled that the available evidence is not confined to oral testimony but includes documentary evidence in relation to contemporaneous exchanges occurring in 2008. Primary witnesses of fact have made statements and can be tested as to the reliability of their evidence on examination during the trial. The trial judge has all the powers necessary to safeguard the Applicant against prejudice arising from fading memories or lost opportunities to investigate if these become apparent during the hearing.

64. Thirdly, the Applicant identifies his health deterioration and psychological impact of the delayed prosecution as a further area of prejudice. He claims that the long delays have directly worsened his physical and mental health. He relies on two major surgeries occurring in 2019 and 2024 and ongoing medical diagnoses (e.g., immune thrombocytopaenia). The Applicant also relies on significant mental health deterioration, including anxiety, depression, suicidal ideation and ongoing stress exacerbated by years of uncertainty. The Applicant maintains that his capacity to instruct lawyers, participate in a trial and defend himself is compromised. He says these health impacts were caused or amplified by the delay, especially the years where he heard nothing after 2016. In legal terms, he argues this constitutes exceptional stress and anxiety beyond what a typical accused person experiences.

21 65. Although the Applicant has encountered significant medical issues, it seems to me that there is insufficient evidence of a causative link between delay and his worsening health condition. While he experiences high levels of stress and anxiety, the medical evidence makes it clear that this is occasioned in large part by a previous complaint against the Applicant, the nature and extent of his medical issues albeit combined with the additional stress caused by the delayed complaint resulting in a new charge in 2024. The fact that the Applicant is a “bad candidate” for additional stress because of his medical issues and the stress caused by a prior complaint does not transform the stress and anxiety occasioned by the new charge into “more than predictable levels of stress” in the sense conveyed in Cormack v. DPP [2009] 2 I.R. 208, [2008] IESC 63 and M.O’H v. DPP.

Is this a sufficiently exceptional case?

66. Finally, the Applicant contends that the cumulative effect of the separate factors he identifies combine to create exceptional circumstances grounding the exercise of jurisdiction to restrain a trial, notwithstanding non-fulfilment of the criteria for reliance by an applicant under either the rubric of prosecutorial delay or unavoidable risk of any unfair trial. I understand the Applicant’s position to be that this case is exceptional because the combination of delays resulting in a breach of the right to expedition, prejudice to the quality of the evidence available and the ability to test it combined with health/memory issues and in the context of the relative seriousness of the circumstances, render any further prosecution of the Applicant unfair and a disproportionate interference with his rights. I cannot agree.

67. Although I have no doubt that the experience of finding himself exposed to fresh charges having already been subject to a trial process in respect of events occurring when he was a minor and in circumstances where he has encountered and lives with serious health challenges, is very difficult for the Applicant and I have found that his right to a trial with expedition has been breached by reason of prosecutorial delay, it seems to me that the evidence does not establish either an insurmountable barrier to fairness in this case or a compelling case for the exercise of a rare and exceptional jurisdiction with reference to the particular facts and circumstances of this case.

22 68. The memory issues and inconsistencies referred to by the Applicant are routine trial issues. In addition, the existence of contemporaneous documents which record what was said by the Applicant and the Complainant in November, 2008, as an aid to memory, cannot be overlooked. These documents arguably contain partial admissions and should not be ignored in an assessment of the fairness of an ultimate trial process. When one “zooms out” as the Respondent submits I should, it is difficult to see what different position the Applicant is in now when compared to his position in 2008 in terms of memory. He claimed then not to remember the alleged events. That being so, he is no worse off now in terms of his own recollection. In view of the contemporaneous recollections documented in emails and messaging, there is no evidential basis for a pre-emptive conclusion, before any evidence is adduced or tested at trial, that by reason of memory fade, relevant material or information is no longer available.

69. A comparison between this case and M.S. v. DPP [2021] IECA 193 where the Court of Appeal prohibited a trial based on cumulative circumstances demonstrates the exceptional nature of the type of circumstances which justify the grant of relief. The Court of Appeal prohibited the prosecution in M.S. v. DPP because of factors which included advanced age (88 years old), serious health decline, multiple previous trials, extreme historical allegations and prosecutorial delay (including failure to communicate joinder intentions) collectively created wholly exceptional circumstances making a further trial unjust.

70. While there has been prosecutorial delay in this case, the allegations are not so extremely historical as in M.S., there have not been multiple previous trials in respect of the events of November, 2008 and the Applicant is still a relatively young man. In particular, there is no concern about cognitive impairment of the type in M.S. present.

71. Nor can the circumstances in this case be compared with those in P.T. v. DPP where the Supreme Court was satisfied that exceptional circumstances existed, making it unjust to put the applicant on trial. In P.T. the Applicant was aged 87, with unstable cardiac disease. The medical evidence showed that stress of a criminal trial could precipitate heart failure or myocardial infarction. In addition, the offences were 37–42 years old.

23 72. In her judgment on behalf of the court in P.T., Denham J. stressed that it was:

“Important to note to what this decision does not relate. The applicant has not discharged the onus of establishing on the balance of probabilities that he has been prejudiced by the delay to such extent that there is a real or serious risk of an unfair trial. Nor has the applicant discharged the onus of establishing that there has been prosecutorial delay as described in law by P.M. v. Malone… and P.M. v. D.P.P. …”

73. Denham J. went on to point out that notwithstanding a failure to satisfy the test of unfairness at trial, the court might nonetheless restrain any further steps in proceedings where it was found that there were wholly exceptional circumstances which made it unfair or unjust to put the accused on trial. She went on to say:

“and this, is a test based on “wholly exceptional circumstances”, which are essentially fact based and thus previous cases are of limited value as precedents. It is necessary when analysing this aspect of the test to consider the particular facts of a case, and to determine whether it would be unfair or unjust to put that specific accused on trial in all the circumstances of the case. In this case relevant factors include: (1) It is an old case, i.e. the allegations relate to the events between 37 and 42 years ago. (2) Consequently, it has the features of an old case. (3) There was an interval of time between the church authorities being told of the allegations, the formal complaint, the charging of the applicant and the return for trial. (4) The applicant is in his old age, he will be 87 years old in the Autumn. (5) The charges have had a detrimental effect on the life of the applicant because of the nature of the charges. (6) The health of the applicant.”

74. The facts of this case fall a long way short of the exceptional circumstances identified in M.S. and P.T. as grounding the exercise of a jurisdiction to prohibit a trial notwithstanding findings rejecting claimed significant risk of unfairness of trial and prejudice. Although there are undoubted medical issues in this case, they are not of an order which would preclude the Applicant participating in a trial process. It is acknowledged that the Applicant suffers considerable stress because he is dealing not

24 alone with the stress of trial but with the consequences of ill-health. Insofar as his stress and anxiety is attributable to a delayed trial on these charges, it seems to me that while he may be a poor candidate for additional stress, it has not been established that the stress associated with impending trial exceeds the levels of ordinary stress attendant on criminal proceedings and that such excess stress is causally related to delay.

75. I am urged in assessing exceptionality to have regard to the particular circumstances of this case factors in this case including the nature of the offence alleged (touching intimately whilst the Complainant was intoxicated and asleep), the age of the Complainant and the Applicant at the time (both adults in their thirties at the relevant time) and the fact that the events were isolated to one night. These factors are identified to support a contention that the alleged wrongdoing is not as serious as that described in other reported cases where prohibition has been refused. This asserted relative lack of seriousness is relied upon to argue that the maintenance of a prosecution in this case is disproportionate when weighed together with prejudice associated with the passage of time and the Applicant’s medical difficulties.

76. The fact that the wrongdoing alleged may be assessed as less serious than wrongdoing described in some of the more egregious cases of abuse with which the courts have become unfortunately familiar does not in my view detract from the seriousness of the offence alleged in this case. While the circumstances may not be the same as those depicted in some of the cases cited on behalf of the Applicant to illustrate the argument advanced by counsel with industrious attention to the specific facts of these earlier cases, this case nonetheless concerns a sexual assault being tried on indictment. The factors identified as suggesting that the offending behaviour is not at the upper end of the spectrum are factors which may be urged on the trial judge at sentencing stage if the Applicant is convicted but are not, in my view, factors which tip this case into the exceptional category such that I might be satisfied that the rare and exceptional remedy of prohibition is warranted.

CONCLUSION

77. The Applicant has failed to persuade me that there is an incurable, real and serious risk of an unfair trial in this case by reason of delay. I am satisfied that the trial judge is

25 well positioned to safeguard fairness in the trial process and may make directions capable of curing any unfairness which may become manifest during the trial process. It is recalled, as confirmed in P.B. v. DPP and more recently in C.C. v. DPP, that the Trial Judge may, where necessary in exceptional cases, not confine itself to directions or warnings to the jury but may withdraw the case from the jury on the basis that the difficulties for the defence are such that it is not just to proceed. In circumstances where the public interest strongly favours prosecution of serious sexual offences and an insurmountable barrier to fairness has not been established, I am not satisfied that grounds justifying the making of an order of prohibition have been demonstrated.

78. In my view none of the different types of prejudice asserted on behalf of the Applicant, either individually or cumulatively, are capable of tipping the balance of justice against the trial proceeding nor of bringing this case into a category of exceptional case where, in view of the length of delay and all of the other factors, it is appropriate to prohibit notwithstanding the public interest in the prosecution of crime. Neither the integrity of the justice system as a whole nor the Applicant’s personal interests, including his right to an expeditious trial, are such as to warrant the grant of the most exceptional relief of an order restraining the prosecution of the Applicant pre-trial.

79. I have concluded, having due regard to all factors including the relative seriousness of the conduct alleged along the spectrum of sexual offending, the delay, the Applicant’s health and family situation and the issues of prejudice identified, that this case is not exceptional in the sense required to warrant the exercise of a most rare jurisdiction to prohibit a trial. Should unfairness or prejudice by reason of delay become manifest during the trial process, it remains open to the Applicant to make application to the trial judge for appropriate orders.

80. For the reasons set out, I refuse the relief sought by way of judicial review. I will hear the parties in respect of any consequential matters where these cannot be agreed.

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