The Supreme Court has cleared the way for the trial of Maze prison escaper Brendan McFarlane on charges connected with the 1983 kidnap of supermarket boss Don Tidey.
By a four-to-one majority yesterday the court, while criticising the fact that important evidence in the case had been lost by gardaí, upheld an appeal by the Director of Public Prosecutions against an earlier High Court order preventing Mr McFarlane's trial from going ahead before the non-jury Special Criminal Court.
The High Court had made an order stopping the trial because certain exhibits from which fingerprint evidence was taken had gone missing and were not available for inspection by Mr McFarlane or his lawyers.
The Supreme Court was told that the case against Mr McFarlane consisted of fingerprint evidence and certain alleged admissions made by him to gardaí after his arrest.
In his judgment yesterday, Mr Justice Adrian Hardiman said there was no doubt that the items on which the fingerprints were discovered had been lost "due to some want of care by someone in An Garda Síochána". "The court wishes to emphasise that this want of care is a very grave matter and requires the urgent attention of the Garda authorities," he said.
"Most unfortunately," he added, "this is by no means the first case to come before the court in which items of real evidence transpire to be missing when they are looked for for trial purposes or in the course of judicial review proceedings."
However, the judge said, the fingerprints had been photographed and the photos of the impressions were still available. He said there was also a forensic examination of the missing items prior to their disappearance, and the results of the forensic analysis had been preserved.
Quite obviously, the gardaí were in breach of their duty to preserve the evidence but, in this case, the breach had not resulted in the loss of that evidence in an independently verifiable form.
Mr McFarlane (52), Jamaica Street, Belfast, was charged in January 1998 with falsely imprisoning Mr Tidey in 1983 and with possession of a firearm with intent to endanger life at Derrada Wood, Ballinamore, Co Leitrim, in November and December 1983.
He had been in prison at the Maze since 1975 for his part in the IRA bombing of a bar on the Shankill Road in which five people were killed. He was the leader of the Provisional IRA prisoners at the Maze prison and escaped in the mass breakout by 38 prisoners from the jail in September 1983. He was arrested in Amsterdam in January 1986, extradited to Northern Ireland and released on parole from the Maze in 1997.
He was arrested by gardaí outside Dundalk in January 1998 and has been remanded on bail since then pending the outcome of various legal challenges to his trial.