Two elderly De La Salle Brothers accused of sexually abusing youngsters nearly 40 years ago will not face trial following a judge's ruling yesterday.
Judge Peter Gibson ruled that Brother "Florence" Joseph Scally (62) and Brother "Albert" Thomas Tierney (75) would not get a fair trial. The two brothers were accused of buggery and indecent assaults between October 1964, and April 1980, allegedly committed at the De La Salle Rubane Boys' Home, near Kircubbin, Co Down, where both had been principals.
The Downpatrick Crown Court judge insisted his ruling was based "solely on legal ground".
"If, in an exceptional case, the defence establishes that a fair trial is impossible, it is the legal duty of the court to stop the proceedings. Emotion can play no part in deciding this question of law," said Judge Gibson.
He added that because of the lapse in time since the first of the alleged offences, documents crucial to the defence case had vanished. "More importantly, however, 56 potential witnesses have died and a further six cannot be traced.
"The few witness who are left are little more than character witnesses and they cannot deal with the specific allegations. It is for these reasons that the court has decided, solely as a matter of law, that the defendants could not receive a fair trial."
Judge Gibson had been told that although the offences date back to 1964, Brother Scally only heard of the allegations in June 1995, and Brother Tierney in April the following year.
Mr Eugene Grant, defending, argued that the delay - 36 years since the first alleged offence and 17 since the last - had caused the brothers "grave prejudice" in preparing their case.
He added that because of the "extreme delay" many important defence witnesses were now either dead or untraceable and any possible forensic evidence had also been lost to them.