The Supreme Court has overturned a High Court order barring Brendan McFarlane’s trial over the 1983 kidnapping and false imprisonment of Donald James Tidy, ruling that the loss of three fingerprint exhibits did not, on the evidence before it, justify stopping the prosecution in advance.
The judgment, delivered by Mr Justice Hardiman on 7 March 2006, also dismissed McFarlane’s cross-appeal on delay. The Court said the delay was entirely before charge and that the Director of Public Prosecutions’ assertion that there had not been enough evidence to charge him before his 1998 arrest was undisputed. It rejected the argument that the authorities should have sought a trial in Northern Ireland or extradition earlier, finding there had been no sufficient case against him for those steps.
McFarlane faces three charges: possessing a firearm with intent to endanger life, possessing a firearm in circumstances giving rise to a reasonable inference it was not held for a lawful purpose, and falsely imprisoning Tidy. The firearm charges relate to Derradda Wood, near Ballinamore, County Leitrim, between 25 November and 16 December 1983. The false imprisonment charge alleges Tidy was detained between 24 November and 16 December. The judgment says Tidy was held outdoors in wooded countryside and was rescued after a gunfight in which recruit Garda Sheehan and Private Kelly died.
The prosecution case described in the judgment included fingerprints allegedly found on a milk carton, a plastic container and a cooking pot at the site where Tidy was held, as well as alleged statements McFarlane made after his arrest. The physical items were lost from Garda custody. The Court called the failure to preserve them a grave matter and said it appeared to result from a want of care.
However, the fingerprints had been photographed before the items disappeared. The photographs and forensic results remained available, and the Court noted that they had been compared with McFarlane’s fingerprints and could be examined further for the defence. No claim had been made that meaningful comparison using the photographs was impossible or that examining the original items would provide an additional advantage.
The Court therefore allowed the Director’s appeal and refused to prohibit the trial. It stressed that this decision did not determine how the evidence would unfold at trial. The trial court retains the power and duty to assess whether a prima facie case exists and whether any unfairness arises that it cannot remedy.