The Supreme Court has dismissed Brendan McFarlane’s appeal seeking to stop his prosecution over the 1983 abduction of businessman Don Tidey and the deaths of Garda recruit Gary Sheehan and Army private Patrick Kelly during Mr Tidey’s rescue.
In a judgment delivered on 5 March 2008, Mr Justice Kearns affirmed the High Court’s refusal to prohibit the trial. The Court held that McFarlane had not established blameworthy prosecutorial or systemic delay of a degree that would warrant stopping the prosecution. It also found that he had shown no actual prejudice to his ability to defend himself and no impairment of other rights protected by the constitutional guarantee of trial in due course of law.
The appeal concerned delay during earlier judicial review proceedings, which McFarlane began in 1999 and which concluded in the Supreme Court in March 2006. Those proceedings had challenged his trial on grounds including the loss of items said to bear his fingerprints. The Supreme Court had previously allowed the State’s appeal against a trial prohibition based on the missing items, while unanimously rejecting McFarlane’s complaint about pre-charge delay.
The High Court had identified delays in processing discovery and the State’s appeal, but found no evidence that their consequences interfered with interests protected by the right to an expeditious trial. In the current appeal, the Supreme Court declined to treat the time taken by the first judicial review as proof of blameworthy delay. It said McFarlane had not provided evidence of the normal timeframe for the relevant court procedures, needed to assess whether the period was outside the norm.
The Court attributed much of the earlier proceedings’ duration to discovery steps, including delays for which both sides bore some responsibility. It found no blameworthy delay before the High Court judgment in July 2003. After that judgment, delays arose in obtaining an approved transcript and completing the appeal papers. The Court accepted that there had been some prosecutorial delay, and arguably systemic delay, in advancing the appeal, but said the evidence did not establish that it was significant or blameworthy enough to trigger the required balancing exercise.
The Court also noted that McFarlane had not sought priority or asked the Supreme Court to strike out the State’s appeal for failure to prosecute it promptly. It said those omissions would have been relevant to any balancing exercise. The judgment stressed that stopping a trial is an exceptional remedy and that the seriousness of the alleged offences and the community’s interest in their prosecution must be weighed alongside the accused’s rights.
The appeal was dismissed and the High Court order was affirmed. The judgment did not determine McFarlane’s guilt or innocence; the prosecution remained pending before the Special Criminal Court.