The Murphy case has again put the spotlight on tainted Garda evidence, writes Carol Coulter
The judgment of the Court of Criminal Appeal is unusually trenchant. The Special Criminal Court did not examine the Garda evidence critically enough, it said.
It came to conclusions based on speculation rather than evidence. It failed to take proper account of the previous conduct of some of the gardaí involved in the case, when this conduct had been criticised by the Special Criminal Court in other cases.
One of the main grounds of appeal was that the court did not take proper account of the fact that one of the two main teams of interviewing gardaí had fabricated notes and then lied in the witness box on oath.
This raised the question of collusion on the part of the other investigating gardaí, according to Colm Murphy's defence counsel, Mr Michael O'Higgins SC, and the Court of Criminal Appeal agreed.
This court found that rather than confront the possibility of such collusion and closely examine the other Garda evidence, the Special Criminal Court produced a benign explanation for the circumstances surrounding the fabricated notes, based on speculation rather than evidence.
Having excluded the tainted evidence, "the surviving Garda evidence would have to be evaluated in the most critical and careful manner" and, if this were a jury trial, a very strong warning would have had to be given to the jury, according to yesterday's judgment.
"We do not consider that the court of trial brought to the issue of the possible contamination of evidence or to the evaluation of the surviving Garda evidence that degree of extra critical analysis which was surely warranted," it said.
It also found the conviction unsafe on the ground that Mr Murphy's presumption of innocence was denied, by taking into account previous convictions for republican activity. In finding him guilty, the Special Criminal Court stated: "In the light of that background and his membership of a dissident terrorist group in Ireland which is not on ceasefire, he is person (sic) likely to be involved in terrorist activities of the sort charged against him."
The appeal court found that no admissible evidence of this was produced. "It is impossible to avoid the conclusion that the previous convictions and bad character of the accused formed a significant element in the court's decision to convict."
After the Omagh bombing, there was a widespread desire that the perpetrators be caught and convicted.
When Mr Murphy, a man with known republican connections, was arrested and charged, few expected him to be acquitted. In the public mind the equation of dissident republicans, any dissident republican, with the atrocity was total.
What the court of Criminal Appeal judgment means is that the courts should, insofar as is humanly possible, put such assumptions out of their collective mind and examine all the evidence objectively.
As is always the case with such crimes, Mr Murphy was brought before the three-judge Special Criminal Court, which sits without a jury. It is presided over by a High Court judge, and a judge of the Circuit Court and a District Justice also sit.
The three judges are expected to act as judge and jury, deciding on matters of law as judges, and on matters of fact as if they were the jury.
They are therefore expected to perform the task - some would say an impossible one - of imagining themselves in the position of a jury while they hear the case, including the legal argument normally conducted in the absence of a jury.
During the trial the Special Criminal Court accepted that two of the interviewing gardaí had altered their notes and was highly critical of them. But the court went on to conclude that this did not taint the evidence of other interviewing officers and that there was no collusion.
Finding otherwise could have resulted in Mr Murphy's acquittal, which would have caused uproar. But, as the neighbouring jurisdiction has found, "appalling vistas" sometimes have to be faced if the integrity of the legal system is to be preserved.