The Effect of Delay on Historical Child Sex Abuse Cases: Commentary on the Irish Experience

Abstract

After a notorious case in 1994, Ireland saw a ‘tsunami’ of allegations of historical child abuse. As well as undermining the Catholic Church in Ireland, this has also posed grave problems for the legal system. On the one hand, there was an enormous, strongly articulated demand for prosecutions for such offences. On the other hand, the prosecution after periods of up to 54 years — often of old or very old defendants some of whom had cognitive or other problems — was difficult to reconcile with Ireland's elaborate requirements for fair procedures, including the right to an expeditious trial. It became usual for defendants confronted with these very old allegations to seek prohibition in the superior courts against what they said were manifestly unfair trials. The tension between the felt need to prosecute and the legal necessity to ensure fair trials troubled the Irish courts and especially divided the Supreme Court of Ireland. This commentary examines some of the key case law, including the landmark 1998 judgment in PC v Director of Public Prosecutions, in which the Supreme Court controversially mandated an assumption in such cases that the complainant's account was true (contrary to the presumption of innocence), and the 2008 decision in SH v Director of Public Prosecutions that introduced a single, prejudice-focused test.