B v Director of Public Prosecutions (Approved)

Factual and Procedural Background

The Applicant is charged with multiple counts of rape and sexual assault concerning two complainants, identified as his younger brother and sister. The alleged offences occurred between 1994 and 1997 when the Applicant was aged between 13 and 15 years. The complainants made their complaints in 2017, leading to the Applicant’s arrest and subsequent prosecution. The charges relating to the Applicant’s sister involve acts committed when the Applicant was under 14 years, thus engaging the common law rebuttable presumption of doli incapax, which applies to children aged between seven and fourteen years and presumes incapacity to commit a crime unless rebutted by evidence that the child knew the act was seriously wrong. The prosecution was initially declined but later directed to proceed following an appeal. The Applicant seeks judicial review to prohibit the trial on the basis of delay and prejudice affecting his ability to receive a fair trial, particularly concerning the application of the presumption of doli incapax.

Legal Issues Presented

1. Whether the delay in prosecution has caused real and serious prejudice to the Applicant such that a fair trial is impossible.
2. Whether the presumption of doli incapax applies to the charges involving the Applicant’s sister and, if so, whether the prosecution can rebut this presumption given the evidential circumstances and delay.
3. Whether the trial judge, rather than the High Court on judicial review, is the appropriate forum to address issues of fairness and the application of the presumption of doli incapax.
4. The extent to which admissions made by the Applicant post-offence can be considered in the context of rebutting the presumption of doli incapax and assessing fairness.

Arguments of the Parties

Applicant's Arguments

• The Applicant accepts the burden lies on him to show that the trial should be stopped and acknowledges it is a heavy burden.
• He concedes for this application that the sexual acts occurred but argues that the delay has prejudiced his ability to have a fair trial, especially because the jury will lack the evidence necessary to determine if he had the requisite knowledge that his acts were seriously wrong at the time.
• The Applicant submits that the jury cannot properly decide whether the presumption of doli incapax is rebutted due to the passage of time and the absence of contemporaneous evidence regarding his cognitive or moral awareness.
• He relies on an expert forensic psychiatrist’s opinion that it is not possible at this remove to assess his cognitive functioning at the relevant age.
• The Applicant argues that admissions made years later, expressing remorse, do not establish knowledge of wrongdoing at the time of the offences and should not be decisive in prohibiting the trial.

Respondent's Arguments

• The presumption of doli incapax does not apply to the charges involving the Applicant’s brother, as the Applicant was 15 years old at the relevant time.
• The court should not prohibit the trial based on speculative possibilities that offences occurred earlier than stated; such issues should be addressed by the trial judge.
• Case law establishes a heavy presumption against prohibiting criminal trials via judicial review; issues of fairness and evidence should be left to the trial judge, who can instruct the jury and withdraw the case if necessary.
• The prosecution can call evidence beyond the commission of the offence itself to rebut the presumption, including the Applicant’s conduct such as arranging a sleepover and closing the bedroom door, indicating awareness of wrongdoing.
• Admissions made by the Applicant are relevant and weigh heavily against prohibiting the trial, as it is unusual for courts to do so where admissions exist.
• The public interest in prosecuting serious crimes must be considered alongside the right to a fair trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the long-standing common law presumption of doli incapax for children aged seven to fourteen, which requires the prosecution to prove that the accused knew the act was seriously wrong, not merely wrong or mischievous. The presumption was abolished by statute in 2006 but applies here as the offences predate that amendment.

The court considered the Applicant’s argument that delay prejudices his ability to have a fair trial because the jury cannot properly assess whether the presumption is rebutted due to lack of contemporaneous evidence and the impossibility of expert cognitive assessment at this remove.

However, the court found that the absence of contemporaneous forensic psychiatric evidence does not preclude other types of evidence that may rebut the presumption, such as the Applicant’s conduct in arranging circumstances conducive to the offences and the admissions made years later. The court emphasized that the jury, properly instructed by the trial judge, is best placed to assess these matters.

The court also noted that the presumption does not apply to the charges involving the Applicant’s brother, as the Applicant was over 14 at the relevant time. Any uncertainty about dates can be addressed by the trial judge through appropriate jury instructions.

Delay alone, without specific prejudice, is insufficient to prohibit a trial. The court emphasized the heavy burden on the Applicant to show a real and serious risk of unfairness that cannot be remedied by trial judge directions or procedural safeguards.

Given the evidence available and the legal principles, the court concluded that the Applicant has not discharged this burden. The trial judge remains the appropriate authority to manage any fairness issues, including instructing the jury or withdrawing the case if necessary.

Holding and Implications

The court REFUSED THE RELIEF SOUGHT and declined to prohibit the prosecution from proceeding to trial.

The direct consequence is that the Applicant’s trial on the charges will continue before the Central Criminal Court. The court imposed a prohibition on publishing any material that could identify the Applicant or the complainants to protect the Applicant’s right to a fair trial.

No new precedent was established; the decision reinforces existing principles that judicial review to prohibit criminal trials on grounds of delay or fairness is reserved for exceptional cases and that trial judges are best placed to manage evidential and fairness issues during trial.