A man charged with having sex with a girl aged under 17 has brought a High Court action to stop a separate investigation by the HSE into the allegations.
The man allegedly committed the offence against the girl while they were at a party. He has been returned for trial to the Circuit Criminal Court in January.
At the High Court today, Sunniva McDonagh SC, for the man, secured leave from Mr Justice Michael Peart to bring judicial review proceedings challenging the HSE investigation.
The man claims the HSE has no jurisdiction to perform an investigation or to make a determination in relation to him before the criminal trial takes place.
Ms McDonagh said the HSE sought to conduct the investigation under Section 3 of the 1991 Child Care Act which stipulates a health board has a duty to act to promote the welfare of children who are not receiving adequate care and protection.
The HSE had said it was going to conduct an inquiry into the veracity of the allegations and then inform “third parties” of its determination, counsel said. This was outside the ambit of Section 3 and amounted to a breach of natural and constitutional justice particularly in circumstances where there was a criminal trial pending.
The man claims the HSE has acted irrationally and in breach of fair procedures in purporting to make a determination as to the truth of the allegation and credibility of the information.
He also claims the HSE has breached fair procedures by requiring him to attend for an interview or make written representations without informing him of the allegations other than “a bare statement” that he was been charged with statutory rape.
The court heard no specific date had been set for him to attend that interview and Ms McDonagh asked for an injunction preventing any determination being made.
Mr Justice Peart made the matter returnable to the High Court in January but said he would not grant an injunction at this stage given no date was fixed for the interview. If necessary, the man could apply before January for an injunction preventing the interview taking place, the judge added.