Press Release - 18 May 2011

Caroline Counihan, RCNI Legal Director said, ‘The RCNI are gravely concerned at the implication of Judge O Donnabháin’s remarks that a victim’s profession may be seen as grounds for questioning her/his actions in relation to reporting a sexual assault case.

‘Every survivor of sexual violence has a unique set of circumstances and choices when considering reporting the crimes. The Supreme Court in 2006 recognized that it was “no longer necessary to establish reasons for the delay” [in reporting]- H vs DPP, per Murray CJ. In fact they went so far as to say that delay in reporting was such a classic feature of sexual violence, particularly child abuse cases, ‘that the Court would probably be entitled to take judicial notice of the fact that this is an inherent element in the nature of such offences.’

‘Despite this Supreme Court finding, not only did Judge O Donnabháin seem to question this victim’s reasons for delay but he also clearly judged her actions in light of her profession which to him made the delay ‘surprising’ and ‘inexplicable’.

‘As reported in the Irish Times today (18th May 2011) ‘Judge Ó Donnabháin said he found her delay surprising given that she worked in a profession where victims of child abuse were encouraged to make complaints and where she would have known that once a complaint was made, it would have been treated seriously.’

‘The question we are left with after Judge O Donnabháin’s remarks is, would some of the approximately 170 staff and volunteers who work in the rape crisis sector in Ireland (as but one example) feel less able to pursue a case in our courts or report in the first place should they be subjected to sexual violence or report past abuse?’


Notes for Editors: Extract from DPP vs H, Supreme Court, 2006, per Murray CJ

“As Murray J. (as he then was) stated in P.O’C –v- D.P.P. [2000] 3 I.R. 87 at p. 105:

“Expert evidence in a succession of cases which have come before this Court and the High Court has demonstrated that young or very young victims of sexual abuse are often very reluctant or find it impossible to come forward and disclose the abuse to others or in particular to complain to Gardaí until many years later (if at all). In fact this has been so clearly demonstrated in a succession of cases that the Court would probably be entitled to take judicial notice of the fact that this is an inherent element in the nature of such offences.”

The Court’s judicial knowledge of these issues has been further expanded in the period since that particular case. Consequently there is judicial knowledge of this aspect of offending. Reasons for such delay are well established, they are no longer 'new factors'.

Therefore, the Court is satisfied that it is no longer necessary to establish such reasons for the delay. The issue for the Court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court would thus restate the test as:

“The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case.”

Thus, the first inquiry as to the reasons for the delay in making a complaint need no longer be made. As a consequence any question of an assumption, which arose solely for the purpose of applications of this nature, of the truth of the complainants’ complaints against an applicant no longer arises. The inquiry which should be made is whether the degree of prejudice is such as to give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any, will depend upon the circumstances of the case.

There is no doubt that difficulties arise in defending a case many years after an event. However, the courts may not legislate, the courts may not take a policy decision that after a stated number of years an offence may not be prosecuted. Also, as the legislature has not itself established a statute of limitations that itself may be viewed as a policy of the representatives of the People. Thus each case falls to be considered on its own circumstances”.


For information:

Cliona Saidlear 087 2196447