[2004] IEHC 347 
THE HIGH COURT
JUDICIAL REVIEW
[2001 No. 628 JR]
BETWEEN
T.H.
APPLICANT
AND
HIS HONOUR JUDGE ANTHONY KENNEDY AND THE DPP
RESPONDENTS
JUDGMENT of Mr. Justice Kearns delivered 22nd October, 2004.
	By order of the High Court (O’Donovan J.) made on 24th September, 2001 leave was given to the applicant to seek by way of judicial review certain reliefs, including an injunction or order of prohibition to prevent the respondent from further prosecuting the applicant in respect of eight counts of indecent assault on a male complainant which are alleged to have occurred between January, 1967 and December, 1968 at a time when the applicant was a teacher in a national school in the midlands in which the complainant was a pupil.  
	The complainant is one of three former pupils of the same school who made complaints of indecent assault against the applicant between 1997 and 1999.  However, all of the charges in respect of one of the complainants were withdrawn on 27th June, 2001, on which date the applicant was returned for trial in respect of the alleged offences involving this complainant.  During the course of these judicial review proceedings, the Director of Public Prosecutions elected not to show cause in respect of the third complainant.  Thus, the only charges which remain against the applicant are those in respect of T.H.
	The grounds relied upon in bringing the present application are those of delay in bringing forward any complaint, the same having been first made only on 13th May, 1999, some 31 or 32 years after the alleged events.  The applicant further contends that he has suffered such a degree of prejudice in consequence of this delay that there is now an unavoidable risk of an unfair trial and an infringement of his constitutional right to a fair trial.  No issue of prosecutorial delay arises on the facts of the present case.  
	The complainant was born on 9th June, 1960 and was aged between 6 and 8 years at the time of the alleged offences.  The applicant is a married man with three children who has been a teacher all his life.  He commenced teaching in 1964 and is still teaching at the present time, although he is currently on leave of absence as a result of the bringing forward of these charges in February, 2000.  The applicant has at all times strenuously denied the allegations of the complainant.  
	In his affidavit, the complainant deposes that when he was a pupil in a class taught by the applicant, the applicant would ask a boy to come to the top of the class.  He would then seat the boy on his knee while the boy looked at, or read from, a book.  The applicant states that on occasions when he was asked to sit on the applicant’s knee the applicant would put his hand down the complainant’s trousers and fondle his penis and private parts.  He would also rub his face off the complainant’s face and had what the complainant now knows to be an erection.  These incidents occurred on a regular basis, according to the complainant, perhaps twice a week, for the first school term when the complainant was in second class.  After Christmas, however, the complainant states that the applicant turned his attention to others in the class and eased up on him.  Thereafter, the incidents occurred perhaps twice a month until the complainant ceased to be a pupil of the applicant in the summer of 1968.  The complainant further asserts that on one occasion, when the complainant was asked to clean the tea room, the applicant followed him into that room and felt his private parts until interrupted when someone came into the room whereupon the complainant was let go.  
	By way of explanation for his failure to bring forward any complaint at an earlier stage, the complainant accepts that he did not inform anyone about these incidents, other than on one occasion when an incident occurred in the school yard in which the school principal saw the complainant make a pulling gesture with his hand and asked the complainant where he had seen that gesture before.  The complainant alleges that he told the principal that the applicant had done that to him and to other boys, whereupon the complainant alleges he got a sharp box on the head from the principal which sent him flying to the ground.  He further alleges that the principal then told him never again to mention to anyone that one of the brothers would do such a thing.  
	Because of this, the complainant says he did not mention the assaults to his parents or siblings, or even his wife following his marriage.  He continued in school until July, 1972 and had no contact with the applicant following that time.  In his young adult life, the applicant began to drink heavily and lost a number of jobs.  He also became divorced from his wife.  He attended counselling for five years, initially due to his addiction problems, but after he made allegations against the applicant he has attended the same counsellor for help and support in relation to the alleged assaults that occurred while he was in primary school.  His brother had also reported abuse in 1997 against another teacher in the school, but the complainant did not then follow suit, his explanation being that he felt too ashamed to come forward at that point since he felt that if he had reported his own sexual abuse at an earlier stage, the abuse of others, including his own brother, might have been avoided.  However, when he saw the R.T.E. programme “States of Fear”, he then felt able to come forward and made a written complaint to the Gardaí on 13th May, 1999, together with further statements on 16th September, 1999 and 18th November, 2001.  
	In his statement, the complainant says that the incidents in the classroom took place in full view of all the pupils.  He also says he was taught by the applicant in second class in 1967-68.  
	In his affidavit, the applicant states that due to lapse of time he cannot be certain if he ever taught the complainant in second class.  His solicitor had spoken to another pupil who believed he was in second class with the complainant and that they had had a different teacher from the applicant.  Enquiries into the school records for the relevant years do not indicate the name of the particular teacher for second class in 1967-68.  The applicant further deposes that only seven statements were taken from pupils in the particular class, whereas, 39 other pupils were approached all of whom declined to make statements.  He further states the classroom in which he taught was closest to the staff room and that every teacher had to pass his room en route to the staff room.  There was a glass window in the door of the classroom so that anyone passing outside could look in and see what was going on.  His desk was opposite this window in plain view of any person who might look through the pane of glass in the door of the classroom.
	The applicant further deposes that the principal mentioned by the complainant has no recollection of any complaint made to him by the complainant.  The former principal is now 84-85 years of age.  Other members of the teaching staff are now either dead, have emigrated, or are unidentifiable or untraceable.  
	The applicant further deposes that there were at that time unannounced visits from school inspectors to whom complaints of any sexual abuse could easily have been made.  Furthermore, any experienced school inspector would have very quickly noticed a dysfunctional class if activities of the type alleged by the complainant were taking place.  However, all attempts to obtain reports from the school inspectors from that time had failed and the Department of Education had not been able to turn up any records.  
	The applicant further deposes that as such a great interval of time has passed he has great difficulty in recollection and that he and his family have been placed under enormous stress by the slow progress of the investigation and the fact that these allegations are outstanding.  The applicant further points out that an affidavit sworn by Garda Hopkins in these proceedings exhibits a statement from yet another pupil who states that in 1967-68, he was in fourth class when taught by the applicant, thereby flatly contradicting the complainant’s assertion that the applicant was teaching second class in the school at that time.  
	Helen Greally, Clinical Psychologist, met the complainant on 10th January, 2001 to report on (a) the effect of the alleged incidents on the complainant (b) the reasons for the delay in reporting and (c) whether the delay was ‘reasonable’ in the light of his individual circumstances.  Her report is dated 10th January, 2002 and concludes as follows:-
“It is the view of the writer that the complainant’s decision not to disclose until 1999 is reasonable on the following grounds:-
(a)	the social climate in which he lived in the 1960s, 1970s and 1980s
(b)	the fact that he saw the applicant and other teachers as being in a position of authority and that their word would always be accepted over his
(c)	he did not believe that his parents would believe him
(d)	he was scared because when he did make an attempt to disclose it was not accepted and he received a severe blow to the head as a result of this.  This stopped all attempts by him to disclose what had happened.  
(e)	only with therapeutic intervention and a growing support network in terms of disclosure was the complainant able to disclose his history of primary school in relation to the applicant.
Given all these facts, it is reasonable that the complainant did not disclose the alleged abuse until 1999.”
Cross examined by Mr. Hartnett, Dr. Greally stated that she saw the complainant on one occasion only and then for about one and a quarter hours.  During this time she took a detailed history from the complainant.  She did not carry out any psychological evaluation or assessment of the complainant.  She accepted that there are a range of approved psychological testing methods which could be availed of in situations such as the present case but felt that a clinical interview could also work well, though she agreed objective testing methods are obviously important.  She told the court that in his adult years the complainant had undergone counselling for alcoholism.  This counselling went on for about five years.  She did not know the name of this counsellor, nor had she made any attempt to contact that person.  Nor did she speak to the complainant’s siblings or parents.  She accepted in cross examination that an inquiry about his brother’s complaints of being sexually abused was a relevant line of inquiry which had not been followed up.  She told the court that her role was not that of investigator.  Her interest was in conveying or giving the complainant’s own view about matters in his personal history. 
At the conclusion of the cross examination, Mr. Hartnett submitted that there could be no question of continuing dominion occurring in this case after the complainant left primary school.  He further submitted that the psychological evidence was utterly inadequate in the instant case, consisting as it did merely of a report of the complainant’s own views of how ‘reasonable’ or otherwise his delay in coming forward had been.  Citing The People (D.P.P.) v. Fox (Unreported, Special Criminal Court, 23rd January, 2002) Mr. Hartnett submitted that the very limited brief given to the psychologist was far from sufficient to discharge the obligations of an expert witness called to explain delay by reference to psychological factors.  An expert could not be a mere ‘echo’ of the complainant himself.
He further submitted that his client had suffered both general and specific prejudice.  No information or materials were now available as to whether the applicant ever taught the complainant.  Furthermore, a number of teachers who might have had something to say or contribute on the allegations were now either dead, untraceable or unidentifiable.  
In response, Mr. Collins S.C. for the respondents submitted that the court was not compelled to rely exclusively on the psychological evidence, but could have regard to the complainant’s evidence and act on this alone.  

Decision

	At this point in time it is unnecessary to refer to the large number of cases setting out the general principles with regard to applications to halt prosecutions on the grounds of delay and prejudice.  Indeed the very multiplicity of judgments at this point in time may be seen as unnecessarily muddying waters which had already been clarified in cases such as J.O’C v. D.P.P. [2000] 3 I.R. 478, P.O’C v. D.P.P. [2000] 3 I.R. 87, J.L. v. D.P.P. [2000] 3 I.R. 122, B. v. D.P.P. [1997] 3 I.R. 140, Barker v. Wingo 407 U.S. 514 [1972] and many others.  Henceforth, this court, unless otherwise directed by the Supreme Court, will refrain from restating principles of law which must now be taken as well established and well known.  
	However, it is perhaps once again appropriate to refer to a number of cases which set out the requirements in respect of psychological evidence in cases of this nature.  While Mr. Collins has stressed that the court is of course entitled to act on the evidence of the complainant alone, and must in any event perform a balancing exercise, the jurisprudence clearly establishes the requirement to furnish an explanation for delay in making a complaint where the delay is, as in this case, substantial and inordinate.  It is for that reason that in virtually all of these cases, the State has seen fit to have recourse to the evidence of psychologists.  It would be the view of this court that such experts can provide very valuable assistance to the court when a proper assessment and evaluation of the personality and history of the complainant is undertaken.  
	However, when an expert purports to act in this way, the expertise of that expert must be deployed in relation to the particular individual and some reasonable efforts must be made by the expert to assess and evaluate the particular complainant.  In the absence of an evaluation or assessment by reference to approved psychological standards, largely theoretical evidence of how childhood sexual abuse may affect victims in a general way is of little or no assistance to the court in reaching a conclusion as to whether or not such abuse may have caused or created a disability of such a degree as to prevent the particular complainant from bringing forward a complaint.  
	In The People (D.P.P.) v. Fox (Unreported, Special Criminal Court, 23rd January, 2002) the court stated:-
“Finally, there is the question of the evidence of the handwriting expert.  From this it is quite clear that the most he can say is that in his opinion it is highly likely that the application form, the subject matter of the counts in this case, was written by the accused.  Mr. McEntee has criticised this evidence and its content and quoted from an authority of a Scottish case namely Daly v. The Edinburgh Corporation which appears (at 1953) SLT 54.  He quoted there from a number of very salient aspects of the case and I quote the President’s judgment:-
‘The value of such independent, i.e. expert evidence, depends upon the authority, experience and qualifications of the expert and above all upon the extent upon which his evidence carries conviction and not upon the possibility of producing a second person to echo the sentiments of the first expert witness.’
He goes on to say:-
‘However skilled or eminent, he can give no more than evidence.  They cannot usurp the functions of the jury or the judge, sitting as jury, anymore than a technical assessor cannot substitute his evidence for the judgment of a court.’
	The learned judge then goes on to quote from various authorities in evidence regarding expert witnesses and I quote as follows:-
‘Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence.  Scientific evidence if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the whole other evidence in the case.  But the decision is for the judge or jury.  In particular the bare ipso dixit of a scientist, however eminent, upon the issue in controversy will normally carry little weight for it cannot be tested by cross examination or independently appraised and the parties have invoked the decision of the judicial tribunal and not an oracular pronouncement by an expert.’
	In A.W. v. D.P.P. (Unreported, High Court, Kearns J., 23rd November, 2001) this court indicated its view, at pp. 30-31, of what is required when psychological evidence is proffered in cases of this nature:-
“Where and when requested to carry out a psychological assessment, it is in my view incumbent upon a psychologist to discharge such a function, in detail and depth, even his brief is mainly to inquire into factors explaining delay.  It is not sufficient, in my view, to set out a list of general principles relating to complaints of this nature and then to attach to a particular complainant without some understanding of the psychological make-up of the individual in question which would suggest whether these general principles, or some of them, were particularly apt or appropriate, or even perhaps irrelevant to the particular complainant.  
	It would be unfair to expect a trawl by a psychologist of every event, illness or sexual contact of a complainant from the age of maturity to the time of complaint, but some insight into the psychological development of a complainant in adulthood is surely relevant.  In this regard, any disclosures of the particular relationship with the accused or any psychological or counselling services to which a complainant may have resorted are surely matters of relevance.  Furthermore, any piece of information which comes to light in the course of an interview, which is, or should be seen as, significantly relevant should be further explored.”
As this decision was not the subject matter of any appeal to the Supreme Court, one might assume that the D.P.P. took this statement as a reasonable outline of what is required of an expert in these cases.
	However, quite apart from A.W. v. D.P.P. there are a large number of judgments in which trenchant criticism has been made of inadequate psychological evidence.  These include FC v. DPP (unreported, High Court, Abbott J. 7th March, 2003; T.M. v. D.P.P. (Unreported, High Court, Kelly J., 20th June, 2001) M.F. v. D.P.P. (Unreported, High Court, McCracken J., 5th December, 1997) and P.L. v. D.P.P. (Unreported, High Court, Herbert J., 16th April, 2002).
	The psychological evidence in the present case fails virtually every requirement adverted to in the citations above.  There was no psychological evaluation or assessment of the complainant.  Obvious leads were not followed up.  A very brief period of time was allocated to the entire exercise, much of which, must of necessity, have been taken up in noting the historical details, rather than any other consideration.  
	It is in my view a complete waste of time to have recourse to professional witnesses whose evidence does not demonstrate expertise when critically examined.  The court is aware from other cases that these reports are often sought at very short notice and that the professional witnesses receive very modest remuneration for their efforts.  I am not for one moment suggesting that Dr. Greally’s report or evidence was shaped or determined by such considerations, but I merely stress these factors to emphasise how difficult it is for any psychologist to provide useful assistance to any court when required to discharge the remit given to them in such unsatisfactory circumstances.  The bringing of serious criminal charges against citizens many years after they are alleged to have occurred is a most serious and stressful matter for those thereby called to account.  It seems to me that due process requires that at the very least thorough psychological evidence be tendered by the State to explain and justify delay in such circumstances.  It is completely lacking in the instant case.
	The court can and must of course have regard to the complainant’s own account of his reasons for not coming forward earlier.  However, such evidence must always be viewed with caution having regard to the fact that it perforce lacks the objectivity and psychological insight and understanding which the expert witness possesses.  I am not satisfied that in the instant case the evidence tendered by the respondent is in any way adequate to discharge the onus of proof to explain delay.  
	Equally, I am satisfied that Mr. Hartnett’s submissions about the degree of prejudice suffered by the applicant in this case are well founded.  
	The passage of such a lengthy interval of time has, not surprisingly, already thrown up significant inconsistencies of recollection as to which teacher was teaching which class during the relevant period.  Some of the teaching staff are now either dead, untraceable or unidentifiable.  No adequate school logs or records exist which would clarify whether or not the applicant taught the complainant in second class in 1967-1968.  No reports of any school inspectors are available from the Department of Education.  
	The absence and non-availability of teacher witnesses who passed along the corridor where the classroom was located is a particular concern in this case.  It seems, at least to judge from the copy photographs which were produced at the hearing, that any teacher glancing into the classroom where the applicant taught would have relevant information to offer as to what they saw or could have seen.
	I think it is also a factor of some importance in this case that, notwithstanding the complainant’s assertion that these incidents took place in full view of the entire class, some 39 former pupils were interviewed and declined to furnish statements which would implicate the applicant in anyway in the sort of wrongdoing alleged by the complainant. 
	While the leave granted by O’Donovan J. in this case included leave to seek a declaration that there should never be an assumption that the allegations made by a complainant is true at any stage of any proceedings, whether criminal or civil, or in any tests or parts of tests that are applied by the court, unless and until he is convicted of such allegations in a criminal court, this particular ground was not argued or pursued during the hearing before this court and must therefore remain over to be dealt with in some other case in due course.
	For the various reasons already given, the court will grant the relief sought by the applicant herein.