The High Court has refused Colm Murphy’s application to stop his retrial on charges connected with the 1998 Omagh bombing, finding no basis to prohibit the prosecution because of delay or his reported memory impairment.
Mr Justice O’Neill delivered the judgment on 23 October 2007 in judicial review proceedings against the Director of Public Prosecutions, Ireland, and the Attorney General. The court refused the relief sought. It did not determine the charges due to be tried in the Special Criminal Court.
Murphy had been convicted of conspiracy to cause an explosion and sentenced to 14 years in 2002. The Court of Criminal Appeal quashed that conviction in January 2005 and directed a retrial. A retrial date was fixed for 11 January 2007. Murphy sought an order preventing it, arguing that the elapsed time and resulting prejudice would deny him a fair trial and a trial within a reasonable time.
The judgment traced the time taken at different stages. The original trial was postponed from January to October 2001 because another trial ran beyond its anticipated time. The Special Criminal Court later adjourned the hearing for the indisposition of a member of the court. The judge found neither delay amounted to culpable delay by the respondents. He also attributed much of the time taken in the appeal process to Murphy’s delay in providing appeal grounds and pursuing legal aid. The two-year period before the retrial date was explained by the prosecution of two Garda witnesses for alleged perjury after the first trial; Murphy had agreed to that sequence and consented to adjournments, the judge said.
The court also rejected the claimed prejudice to the defence. No evidence or witnesses from the first trial had been lost or become unavailable. The judge accepted that a retrial can involve less spontaneity in testimony and less surprise in cross-examination, but said those features did not justify prohibiting it. He considered the anxiety described in a psychiatric report understandable in the circumstances, but insufficient to stop the prosecution.
A medical report described difficulty with short-term memory when rapidly presented verbal information had to be processed, particularly in stressful interview conditions. The judge concluded that the impairment did not prevent Murphy recalling past events, including his Garda interviews, or instructing his legal team. He said the trial court could devise an appropriate strategy if Murphy had difficulty understanding or responding to questions.
The judge also held that the Convention right to an expeditious trial could be considered only for the period after the European Convention on Human Rights Act 2003 took effect. He found no culpable delay by the respondents in that period and no breach of Article 6. The application was refused.