A Supreme Court judge yesterday highlighted the "special problems" confronting the courts in dealing with cases of alleged sexual abuse dating back many years and warned of "real risks of miscarriages of justice".
Mr Justice Hardiman stressed the need for caution by the courts when it came to dealing with psychological evidence in sex abuse cases. The need for caution was at "its very height" in relation to repression, the repressed memory of abuse which is triggered by therapy or some other stimulus.
It was his belief the risks of a miscarriage of justice increased with the degree to which a trial involves a situation of bare assertion countered by mere denial. If a defendant was put in a position where there was little or no context of indisputable fact which could be used as a specific check on credibility, then justice was "put to the hazard".
Persons in that position were deprived of a true opportunity of meeting the case against them.
There was a duty on all parties concerned with such cases, particularly on the gardai because of their investigative role, to take all possible steps to establish as many as possible of the facts surrounding claims of sexual abuse.
The Director of Public Prosecutions should also indicate what specific directions he believed should be given by trial judges in lapse of time cases.
The judge said the whole background of cases alleging abuse, including full details of the circumstances in which allegations came to be made, whether the nature of allegations changed over time, whether other allegations were made against other persons and whether repression in the clinical sense was alleged, should form part of a psychological report.
He rejected the view - which he said could be inferred from a psychologist and psychotherapist's report in relation to a case where a man was charged with rape, buggery and indecent assault of a young girl - that a delay in complaining of abuse should be found excusable solely on the basis of the offence.
Mr Justice Hardiman was granting two separate orders preventing the trials of two men on sex charges after finding both applicants had established a real and serious risk of an unfair trial due to specific prejudice in preparing their defence due in turn to the lapse of time between the commission of the alleged offences and their being charged.
The judge said the courts had permitted prosecutions of sex cases to proceed after lapses of time so great that they would normally be fatal to a proposed prosecution. This was because the courts recognised such cases were in a special category and that children needed to be protected against these most objectionable crimes.
As a result, prosecutions for old offences had become commonplace and this had naturally given rise to new problems in ensuring fair trials. The courts had operated on the assumption that complaints of abuse were true.
Mr Justice Hardiman said he had already outlined grave reservations in relation to that assumption but would leave it aside until it was raised in an appropriate case.
He then dealt with the role of psychological evidence in sex cases. It appeared the psychological effects which the court would regard as potentially excusing gross delay in making a complaint of abuse were (a), dominance, particularly if the accused and complainant were closely related or associated and (b), repression or suppression of the alleged abuse.
However, the fact the offence was of a sexual nature was not itself a factor which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed.
Mr Justice Hardiman said he agreed with Ms Justice Denham's observation that "our knowledge of the extent and dynamics of child sexual abuse is of very recent origin and is growing". The courts should have regard to new insights in this field "provided they were fully understood and generally accepted and established by proper evidence in the particular case". However, it appeared there were few aspects of abuse which were uncontroversial.
Mr Justice Hardiman said the growth of knowledge about child sexual abuse was marked by enormous controversy among highly qualified professionals "and by great caution amongst those who try to find a middle way between the controversial poles".
This controversy and therefore the need for caution was at its very height in relation to the concept of "repression". This notion of repression seemed to lie at the heart of the expanded concept of dominion as set out in Supreme Court decisions.
Such controversy did not mean the courts should reject all new and developing insights on abuse but pointed to the need for caution and for full and impartial presentation of psychiatric or psychological evidence, he said.