The former principal biochemist with the Blood Transfusion Service Board, Ms Cecily Cunningham, has secured leave from the High Court to take proceedings aimed at preventing her trial on charges arising from the hepatitis-C blood-infection saga dating back to the 1970s.
Mr Justice O'Sullivan yesterday granted leave to Mr George Birmingham SC, for Ms Cunningham, who retired from the BTSB some years ago, to seek in judicial review proceedings an order prohibiting, on grounds of delay, her trial on charges in relation to the infection of seven women with hepatitis C.
Mr Birmingham said it was not clear exactly what case was being made against Ms Cunningham but it seemed to amount to alleged criminal negligence.
Last July, Ms Cunningham, Hollybank Road, Clontarf, Dublin, and Dr Terry Walsh, also formerly an official with the BTSB, became the first two people to be charged in connection with the hepatitis C saga.
Ms Cunningham was charged before Dublin District Court with unlawfully and maliciously causing a noxious substance, namely infected anti-D, to be taken by seven women thereby causing grievous bodily harm contrary to the Offences Against the Person Act.
Yesterday, Mr Birmingham said he would be making the case that his client's right to a fair trial was prejudiced both through the delay between the commission of the alleged offences and the initiation of a prosecution and through culpable prosecutorial delay.
He said the alleged offences dated back to 1977. Information on which the charges were brought against his client was known to the DPP from the publication in March 1997 of the Finlay report into the hepatitis C saga. There had also been an expert group report on the BTSB published in 1995.
A Garda investigation was initiated after publication of the Finlay report and Ms Cunningham was questioned in May 1999. In October 1999, a file was sent to the DPP but nothing more was heard by Ms Cunningham until last July when she was arrested at her home in the early morning.
Mr Birmingham said he would be contending there was significant prosecutorial delay by the authorities, in that everything that was in the book of evidence served on Ms Cunningham this year was available to the authorities in 1997.
He said issues which would be relevant to the trial included what information was shared within the BTSB about the anti-D product and what instructions Ms Cunningham had received from her superiors. The delay in bringing charges would make it difficult for Ms Cunningham to establish facts regarding those issues. A number of important potential witnesses, including Mr Seán Hanratty, Ms Cunningham's immediate superior, and Dr James O'Riordan, a former director of the BTSB, had died and this added to the prejudice against his client.
It appeared there was some contact between Dr O'Riordan and a consultant in Middlesex, England, regarding the anti-D product but Dr O'Riordan was dead and the English consultant might also be dead, although that had yet to be established.
Mr Birmingham said he would be also advancing arguments under the European Convention on Human Rights adding that there could be additional grounds for judicial review as the prosecution had not yet completed the discovery process.
Mr Justice O'Sullivan said he would grant leave to bring the proceedings and returned the matter to November 25th. He noted Mr Birmingham was also applying for the proceedings to be funded under the Attorney General's scheme.