ANALYSIS:THE ACQUITTAL of Brendan McFarlane of the kidnapping of Don Tidey brings to an end a nine-year legal saga.
Brendan “Bik” McFarlane was first arrested on suspicion of involvement in the kidnapping of Don Tidey in January 1998. He had been released from the Maze Prison on parole only months earlier. Eight interviews were conducted with him following his arrest, and these were the subject of intense legal argument in the Special Criminal Court over recent days. According to investigating gardaí, he had said: “I was there. You can prove that but I will not talk about it,” but he vehemently denied to the court making any such admission.
Gardaí had also claimed that his fingerprints were found on a number of items found at the scene of the kidnapping, including a plastic container and a milk container. However, it emerged that these items had gone missing from Garda headquarters.
This was the basis for McFarlane’s first legal challenge to his prosecution, when he brought judicial review proceedings in 1999 on the basis that crucial evidence had been lost. The decision was given by the High Court in 2003, when Mr Justice Ó Caoimh ruled that the trial should not go ahead because of the missing evidence.
However, that was overturned by the Supreme Court in 2005, when by a four-to-one majority it ruled that the trial should go ahead, stating that photographs of the fingerprints existed and forensic information had been logged. It also referred to the existence of admission evidence.
McFarlane then took a second judicial review, on the grounds that his case should not go ahead due to delay since he was first charged. The High Court rejected this, and his appeal to the Supreme Court failed, paving the way for the trial in the Special Criminal Court.
There the main evidence against him was the purported admission evidence.
McFarlane gave evidence in the Special Criminal Court denying he had made any admission of involvement in the kidnapping. He told prosecution counsel Edward Comyn SC that although the notes of each of his interviews were read over to him, the alleged admissions were never put to him.
When asked if he believed his comments were added later he said: “That’s precisely what I’m saying, my Lord.” In seeking to have the interview evidence ruled out, his counsel, Hugh Hartnett SC, told the court that evidence given by retired Det Supt John McElligot during a bail application by McFarlane in January 1998 was that the main evidence against him was fingerprint evidence. No reference was made to alleged admissions at this time, and he said this was because the alleged “verbal” statement was not in existence then.
He asked the court to consider why no reference was made to this evidence in 1998.
In ruling the interviews inadmissible yesterday Mr Justice Paul Butler said there was a doubt, and the benefit of it should go to the accused. He also said that they did not meet the statutory regulations in that not all dates of the interviews and not all answers given by McFarlane were recorded.
He pointed out that if today’s norms operated, and video-recordings existed, the issue would not have arisen.