Sil Fox, the nonagenarian entertainer and comic, wants his High Court claim for damages arising from the failed prosecution of a sexual assault charge against him to be heard by a jury.
Fox is suing the Director of Public Prosecutions (DPP), the Garda and various other State parties, alleging that the decision to prosecute him “destroyed” his reputation and standing, and caused him emotional distress.
Fox, who turns 93 next week and resides in Templeogue, Dublin 6, claims the “reckless” decision to prosecute breached his constitutional rights, including his right to a good name. He also claims he suffered breaches of his human rights.
In May 2020, a District Court judge dismissed the charge against Fox due to inconsistencies in evidence, clearing him of sexually assaulting a female complainant at a Dublin bar on December 17th, 2018.
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In a pretrial motion on Friday, lawyers for Fox asked Judge Oisín Quinn to use his discretion to direct that a jury be convened for the hearing of Fox’s civil action.
Only certain civil cases have an automatic entitlement to be tried by a jury, sitting with a judge. The Fox side accepts its client is not entitled by default to have his case heard by a jury.
Barrister Barra McGrory, appearing for Fox and instructed by solicitor Kevin Winters, submitted to the court that there were no grounds for the failed criminal prosecution against his client, and that the DPP was “guilty of a dereliction of duty”.
McGrory said that if the DPP and the Garda had fully examined all evidence available to them they would have identified “inherent contradictions” in the complainant’s evidence and the case would have never been brought against Fox.
McGrory said his side was seeking a jury trial, arising from the alleged degree of recklessness on the defendants’ part in bringing the prosecution, and the consequences suffered by Fox as a result.
McGrory submitted that when the power vested in the DPP and other State bodies is exercised recklessly – as in Fox’s case, he submitted – there must be a mechanism for those bodies to be held to account.
The criminal case against Fox resulted in significant “adverse” publicity for him, McGrory said.
As a result of the publicity attached to the case, Fox submits that the damage to his reputation “was done”, in respect of his career as a “much-loved and well-known” entertainer, counsel said. McGrory said Fox claims his popularity significantly waned following the case, and offers of work and public appearances radically diminished.
Barrister Conor McKenna, appearing for the DPP, said his client’s decision to prosecute Fox was made on the basis of the complainant’s witness statement, and CCTV footage, which was not inconsistent with her claims.
It is his client’s position that a bona-fide and “reasonable” decision was made to prosecute on the basis of available evidence.
McKenna submitted there were complex matters of law arising in the case that were not suitable for a jury to decide.
This included the fact that a decision of the DPP can be reviewed by the courts only in exceptional circumstances.
McKenna also submitted that Fox’s side did not advance legal authorities to support many of its arguments in seeking a jury trial.
Barrister Paul O’Higgins, appearing for the Garda Commissioner and other State parties, said the prospect of having the case heard by a jury was “legally preposterous”.
O’Higgins also noted that the Fox side had not engaged with a request to specify the allegations being directed at specific defendants. “Everyone is alleged to have done everything,” he submitted.
The judge said he would issue his ruling at a later date.
