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1. The applicant seeks to prohibit his trial before the Circuit Criminal Court at Clonmel in respect of a two count indictment.

2. The charges which the applicant faces are

3. As is evident the alleged offences occurred many years ago, between in excess of thirty years and twenty seven years respectively.

4. The applicant seeks to enjoin the further prosecution of these offences on the grounds of delay.

5. At the time of the alleged offences both complainants were boys resident at St Joseph's Industrial School, Clonmel, County Tipperary. Mr O'S. had been sent to live there in 1970 when he was twelve years old. Mr M. went to reside there in late 1972 or early 1973. The applicant was on the staff there and was a priest of the Institute of Charity commonly called the Rosminians.

6. No complaint concerning these alleged offences was made to the police until 1997 in the case of Mr M. and 1998 in the case of Mr O'S.

7. On foot of those complaints investigations were begun leading to the charges being preferred. Subsequently the return for trial was made.

8. There can be no doubt but that delay of the magnitude involved here between the alleged offences and the complaint to the police is inordinate. As was said by Denham J. in B v DPP [1997] 3 IR 140 "Prima facie the delay of approximately twenty to thirty years between the alleged offences and the pending trial is an inordinate lapse".

9. It is to be noted that in the case of non-sexual offences much shorter times than that involved here have been regarded as inordinate. For example, in State (O'Connell) v Fawsitt [1986] IR 362, a delay of three years was described as "extreme".

10. In cases of sexual offences against children however, a different approach to delay has been taken. This was commented on by Hardiman J. in two cases. They were PO'C v DPP [2000] 3 IR 87 where he said "It has been recognised for a considerable time that cases involving the alleged sexual abuse of children have features which distinguish them from others for the purpose of considering the effect of lapse of time on whether the prosecution should be restrained from proceeding to trial. It is obvious that a child may be inhibited from making a complaint at the time of the alleged offence or shortly afterwards". In JL v DPP [2000] 3 IR 122 he said "It is a feature of cases of this sort that courts have been prepared to permit prosecutions to proceed after lapses of time between the alleged offence and the date of the proposed trial so great that they would normally be fatal to a proposed prosecution. The reasons for this willingness to apply a separate and quite exceptional standard to these child sexual abuse cases was set out in the judgment of Finlay C.J. in G v DPP [1994] 1 IR 347 and have subsequently been elaborated by this court in B v DPP [1997] 3 IR 140, PC v DPP and DPP v JO'C (Supreme Court unreported 19th May, 2000)"

11. The first thing to note in respect of the present case is that the offences here are not sexual in nature. They are allegations of assault.

12. The second feature of note is that unlike many of the cases where the courts have been prepared to apply what has been described as this wholly exceptional standard of allowing trials to proceed after long delays, there is here no suggestion of any form of dominion having been exercised by the applicant on either of the complainants. In fact it is expressly conceded by the respondent that the question of dominion does not arise.

13. It is plain that there is no suggestion that the applicant contributed to the delay in making the complaints. This is clearly a matter which the court is entitled to take into account in permitting an extended time in respect of sexual offences against minors. In this regard Finlay C.J. in G v DPP [1994] 1 IR 374 said "The court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order".

14. A further feature which appears in most, though not all, cases but which has no application here is that there is not here anything other than two specific single acts alleged in respect of each complainant. There is no allegation of a continuous series of offences or anything like it.

15. The applicant avers as follows

16. No application was made to cross-examine the applicant upon those averments which were contained in an affidavit sworn by him.

17. The complainant have each sworn affidavits. Mr M. avers as follows:

18. Mr O'S.'s affidavit insofar as it is material states as follows:

19. It is clear from Mr O'S.'s affidavit that there is no suggestion of any from of sexual abuse of him at any stage in his life.

20. Both of the complainants were examined by a Mr Domhnall Casey. He is a clinical psychologist, psychotherapist and psychoanalyst. He is attached to the rather grandly titled Institute of Psycho-Social Medicine. He was cross-examined on his affidavit evidence. In the course of that cross-examination it emerged that the Institute of Psycho-Social Medicine is not an 'institute' as ordinarily understood. It is nothing more than a grandiose name for a private practice which is conducted by a group of psychiatrists and psychologists. It does not operate as an institute as such nor is it an adjunct to any of the Royal Colleges, university or hospital. This has some significance in the light of matters that I have to deal with later in this ruling.

21. Mr Casey prepared a report in the respect of each complainant. His first reports were the subject of strong and robust criticism from Professor Patricia Casey and resulted in the preparation of two further reports. He was cross-examined whilst Professor Casey was not.

22. In approaching Mr Casey's evidence I bear in mind the observations of Hardiman J. on the topic of psychological evidence contained in the case of J L v. DPP [2000] 3 IR 122.

23. Professor Casey's criticisms were contained in her affidavit. She is a consultant psychiatrist at the Mater Hospital in Dublin and holds the chair of clinical psychiatry in University College Dublin. She is also the co-author of the text book "Psychiatry and the Law". In her affidavit concerning the first reports prepared by Mr Casey she says as follows.

24. Insofar as the report on Mr M. is concerned she says:

25. Insofar as the report concerning Mr O'S. was concerned Professor Casey says as follows:

26. Following that affidavit each of the complainants was interviewed once again by Mr Casey. On this occasion each complainant was interviewed for a further one and a half hours. Two further reports were prepared and a supplemental affidavit of Mr Casey was sworn.

27. While some of the criticisms of Professor Casey were attempted to be addressed in these later sessions, it was clear that a further one and a half hours per complainant by way of interview falls far short of the far lengthier evaluation than she has in mind. In particular, her criticism of the fact that no collateral information from independent sources had been sought in respect of either complainant was not addressed at all. The reason for this is that Mr Casey did not have the resources which he said might well be available to Professor Casey in such circumstances. This is pertinent to the fact that the grandiosely titled Institute of Psycho-Social Medicine is in fact not an institute in any ordinary understanding of that term at all.

28. Having considered Mr Casey's evidence and in particular his cross-examination, I would have to say that all in all I found his evidence unconvincing. It did not to my mind establish the existence of any form of psychological, still less psychiatric impairment to justify the delay in question. It is not suggested that the applicant here was responsible for the delay in making complaint concerning the alleged assaults. Neither is there evidence either from the testimony or the literature that physical abuse alone gives rise to a reaction which would justify a complaint not being made for many years. One of the complainants has no history of anything other than alleged physical abuse.

29. The Director of Public Prosecutions submits that notwithstanding the non-sexual nature of these charges the principles established in sex offence cases involving delay should apply here. No case was cited by counsel to support the view that such a course would be justified. I am not persuaded that I ought to apply what was described as the "separate and quite exceptional standard" to a case such as this where there is no allegation of sexual abuse of any form levelled against the applicant.

30. There are statements in some of the judgments which were opened to me which suggest that the special approach is limited to sexual abuse cases and none other. In other judgments of the Supreme Court it is suggested that the special rules apply not by reference to the nature of the offence charged but having regard to all the circumstances of the case.

31. Given the possibility of conflict between these two views I will therefore consider the present case as if the special rules are applicable to it.

32. Even with such an application of the special approach I have concluded that the delay here is so excessive as to give rise to a presumption of prejudice. Not merely that, but I am satisfied on the evidence that there is actual prejudice. A further matter of significance is that there was here no dominion exercised by the applicant over the complainant. Hardiman J. has approved what was said in this court by Geoghegan J that "It would in my view be only in the rarest of circumstances that a court should allow a prosecution for sexual offences against children or young children which have occurred a very long time ago to proceed in the absence of this element of 'dominion' and its psychological continuance" . There was no dominion here. The case does not exhibit any of the 'rarest circumstances' which would justify the prosecution proceeding. There is no convincing psychological evidence to excuse the late complaint. The applicant in this case bears no responsibility for the delay that has occurred between the events alleged and the making of the complaints.

33. I am convinced that there is here a real and serious risk and danger that an unfair trial will occur if these prosecutions are permitted to proceed.

34. I will therefore, find in favour of the applicant and grant a perpetual injunction restraining the Director of Public Prosecutions from proceeding further with the charges which are at present pending in the Circuit Court at Clonmel.