A Supreme Court judge has called for a change in procedure that would allow full disclosure, to defending lawyers, of all material relating to old cases of alleged child sexual abuse.

Mr Justice Adrian Hardiman said a special jurisprudence has arisen in relation to child sex abuse allegations, in which prosecutions are routinely permitted after a lapse of time that would not normally be allowed.

He said that the decision to allow the trials of very old cases carried with it a positive duty to take steps to ensure a fair trial.

“Lapse of time undermines memory and often makes it difficult or impossible to challenge the complainant’s account, in any detailed way, or to find evidence with which to contradict him or her,” he said.

The judge added that, as the law stands, the elaborate procedures for discovery in civil cases do not apply to criminal cases, and, despite the recommendations of a working group in 2003, no provision has been made for preliminary hearings to address these problems.

Referring to the recent Nora Wall case, where a nun was wrongly convicted of the rape and indecent assault of a 10-year-old girl in Waterford, the judge said: “Moreover, the courts have had recent experience of disturbing cases of grave shortcomings in disclosure. The included non-disclosure of the fact that a prosecution witness had previously made a dubious allegation of rape against another party.”

Mr Justice Hardiman said that it was his view that, until a satisfactory provision for disclosure or discovery in criminal cases comes into being, applicants were entitled to raise the question of disclosure in judicial review proceedings.

“It appears to me that an applicant in an old sex abuse case may be entitled to sight of all statements in the nature of complaints or disclosures of alleged abuse.

“It will clearly be of the greatest importance to establish if there is consistency over time in the complaints made, or if they evolved over time, and, if so, why.”

The judge’s remarks were made during a Supreme Court dismissal of an attempt to halt his trial by a man accused of – more than 20 years ago – raping his niece and sexually assaulting his nephew.

The five-judge court unanimously ruled that the delay in reporting the alleged offences had been explained, that it did not deprive the man of a fair trial and that the non-disclosure of material was not a reason for prohibiting his trial.

Vivion Kilfeather, Irish Examiner