The High Court has begun hearing an action by Co Louth man Colm Murphy aimed at stopping his retrial on a charge of conspiracy connected with the Real IRA bombing of Omagh in 1998, in which 29 people died.
Mr Justice Iarfhlaith O'Neill was told yesterday that a neuro-psychologist who examined Mr Murphy three months ago concluded he had suffered a very severe head injury and brain damage as a result of a hit and run in 1988 and that he suffered from short-term memory impairment.
Michael O'Higgins SC, for Mr Murphy, said the examination by the neuro-psychologist had been carried out after another psychologist detected a subtle memory impairment. This was a new ground in the legal challenge, Mr O'Higgins said, and he was seeking leave to amend the proceedings to include it.
He claimed Mr Murphy was disadvantaged in that he could not challenge his interviews by gardaí over three days because of his impairment.
Experts on behalf of the State had also carried out an examination of Mr Murphy, Mr O'Higgins added. Interviews carried out by gardaí when Mr Murphy was under arrest had not been videotaped and the notes over three days varied greatly. A person with short-term memory loss could only give an incomplete account of an interview because of memory malfunction, he added.
Opposing the application to amend, Shane Murphy SC, for the Director of Public Prosecutions, said two psychologists had stated in reports that it was their opinion that Mr Murphy was fit to stand trial. Mr Murphy was now trying to insert a whole different case into the legal challenge, he argued.
Mr Murphy's trial was scheduled to open before the non-jury Special Criminal Court last January but has been deferred pending the outcome of the judicial review challenge.
A building contractor and publican, a native of Co Armagh but with an address at Ravensdale, Co Louth, Mr Murphy (53), was freed on bail in 2005 after the Court of Criminal Appeal quashed his conviction and 14- year sentence for a conspiracy offence connected with the Real IRA bombing of Omagh in which 29 people died.
The appeal court overturned the conviction and ordered a retrial after finding that the court of trial had failed to give proper regard to altered Garda interview notes. It found there had been "an invasion of the presumption of innocence" in the judgment.
During his 25-day trial in 2001 and 2002, Mr Murphy had pleaded not guilty to conspiracy to cause explosions.
The case continues today.