The Supreme Court dismissed Brendan McFarlane’s appeal against the refusal of his second application to prohibit his trial on charges including the false imprisonment of Donald Tidey and firearm offences. The court found that delay in the earlier judicial review proceedings did not justify stopping the prosecution.
The charges concern alleged offences in November or December 1983. McFarlane was charged in January 1998. His first judicial review challenge, based on delay and the loss of physical evidence, ended in March 2006 when the Supreme Court allowed the Director of Public Prosecutions’ appeal and rejected McFarlane’s cross-appeal.
McFarlane began the second judicial review proceedings in May 2006. He argued that the six years and four months taken to resolve the first challenge breached his constitutional right to a trial with due expedition and his rights under Article 6 of the European Convention on Human Rights. He sought to have the trial prohibited. The DPP argued that the claim was an abuse of process because the delay issue could have been raised in the earlier proceedings, and that McFarlane had shown no prejudice to his ability to defend himself.
The court rejected the DPP’s preliminary objection. It said the alleged delay arose during the first proceedings and found insufficient evidence to treat the second challenge as an abuse of process.
On the merits, the court said much of the time taken over discovery in the first case was attributable to McFarlane’s own steps and that he had not acted to expedite the DPP’s appeal. It accepted there had been significant delay in producing the approved High Court judgment transcript, but held that the overall delay did not breach his constitutional right to an expeditious trial. Even assuming a breach, the court said the additional delay and the stress and inconvenience described did not outweigh the public interest in trying serious charges involving alleged kidnapping and firearms.
The court also rejected the claim that delay created a real risk of an unfair trial. It said the earlier ruling on lost evidence could not be reopened and the new claim did not identify specific prejudice to the defence. Addressing Article 6, the judgment noted that the Convention was not directly effective in Irish law and said it did not alter the result. The appeal was dismissed; the trial was not prohibited.