The Supreme Court corrected two factual details in its earlier judgment dismissing Mark Nash’s claim for damages over alleged delay in bringing him to trial. It said the corrections did not change the conclusion that there had been no culpable delay, and proposed no further order beyond identifying the corrections.
The application followed the Court’s October 2016 dismissal of Nash’s appeal concerning his damages claim. Nash’s criminal trial had gone ahead and he had been convicted; at the time of this judgment, his appeal against that conviction was before the Court of Appeal. The Supreme Court said it was important that nothing in the present judgment should affect that appeal.
The Court clarified that a button and thread from Nash’s jacket had remained at the forensic science laboratory from the initial investigation, while the jacket itself was held separately by An Garda Síochána. During a later case review, the jacket was returned to the laboratory and new technology was used to test both the retained button and thread and other parts of the jacket.
It also corrected the account of when the relevant DNA testing technology became available. Evidence before the High Court established that it was available in Dublin in 2005. The Court said it had been available in some other jurisdictions about four years earlier. The earlier judgment had placed availability in Dublin at 2005 or 2006 and had referred to a possible review two or three years earlier; those passages were amended to reflect availability three or four years before the later testing, or potentially earlier if material had been sent abroad.
The Court rejected a separate challenge to the description of samples tested during the initial investigation. It said the human material samples were destroyed during testing and that no samples of human material were retained. The button and thread themselves were retained, but were not known DNA samples. The Court described as untrue an affidavit statement that a DNA sample had been on file since 1998: the materials were there, but it was not known that they contained DNA capable of producing a profile.
In explaining why the corrections did not change the damages judgment, the Court said the laboratory’s custody of the button and thread rather than Garda custody made no practical difference to any question of delay. It also said this was a cold case reviewed from time to time, with no particular reason for investigators to expect that later testing would produce results. The Court therefore found no basis to reach a different conclusion on culpable delay.