The Supreme Court has dismissed Colm Murphy’s appeal to stop his retrial on a charge of conspiracy to cause an explosion, but has barred the Director of Public Prosecutions from proceeding with a separate charge of membership of an unlawful organisation.
The judgment, delivered by Mr Justice Geoghegan on 14 July 2009, followed Murphy’s appeal against a 2007 High Court refusal to prohibit the retrial. The Court of Criminal Appeal had quashed his conspiracy conviction in January 2005 and ordered a new trial.
Murphy argued that delay, including delay in preparing his appeal, the prosecution of two garda witnesses for perjury and alleged impairment of his memory, meant he could not receive a fair trial. The Supreme Court found no basis to overturn the High Court’s conclusions on those matters. It held that the delays relating to the prosecution of the gardaí were explained, and that Murphy had acquiesced in postponing his retrial until that case concluded. The gardaí were acquitted.
The court also upheld the High Court’s assessment of expert evidence about Murphy’s memory. That evidence described difficulty temporarily retaining fast-paced verbal information, particularly during stressful interviews. The High Court had concluded that the impairment did not prevent him recalling past events or instructing his legal team, and the Supreme Court saw no reason to disturb that conclusion. It also upheld the finding that the evidence did not establish prejudice or distress sufficient to justify stopping the retrial.
The separate membership charge had never been tried and had remained dormant while proceedings on the conspiracy charge continued. Although it had initially been reasonable to defer that charge, the Supreme Court said the eventual combination of events—including a judge’s illness, an earlier trial overrunning and the delay caused by the perjury proceedings—could not have been anticipated. In the circumstances, it would be unfair to allow the membership charge to proceed.
The appeal was therefore allowed only in part: the DPP was enjoined from proceeding with the membership count, while the conspiracy retrial was not barred. The judgment does not decide the outcome of that retrial.