The High Court yesterday granted Belfast prison escaper Mr Brendan McFarlane an order preventing his trial before the non-jury Special Criminal Court on charges arising from the kidnapping of supermarket executive Mr Don Tidey 20 years ago.
Mr Justice Ó Caoimh however placed a stay on his order restraining the trial to allow the State time to decide whether to appeal against that order to the Supreme Court.
On the application of Mr Stephen McCann, for Mr McFarlane, he also awarded costs to Mr McFarlane. The kidnapping of Mr Tidey led to a nationwide search which culminated in a shoot-out at Derrada Wood, near Ballinamore, Co Leitrim, in December 1983 during which a Garda recruit and a soldier were killed.
Mr McFarlane, with an address in Belfast, was facing trial on charges alleging that between November 25th, 1983, and December 16th, 1983, he was in possession of a firearm at Derrada Wood with intent to endanger life and for an unlawful purpose.
He was also charged with the false imprisonment of Mr Tidey between the same dates.
Mr McFarlane had claimed his right to a fair trial had been prejudiced by the delay of some 20 years in prosecuting the charges and also through the loss of a number of items on which, gardaí claimed, his fingerprints were found.
In a reserved decision yesterday, Mr Justice Ó Caoimh ruled that Mr McFarlane's right to a fair trial had been prejudiced by the loss of a number of items taken from the kidnapper's hideout in Derrada Wood on which items, the prosecution claimed, some fingermarks matching those of Mr McFarlane had been obtained.
The items - a milk carton, a plastic container and a cooking pot - had been stored at Garda headquarters from 1983 but went missing when the area where they were being stored was undergoing renovations.
The fact these items had been held in Garda custody bore out the fact they were considered to be important evidence, the judge said. It was clear their loss were due to a want of care at a time when the Garda headquarters was being renovated.
The effect of the loss was that the items were not available for inspection by Mr McFarlane or anyone acting on his behalf.
The judge said the courts had addressed issues relating to the loss of evidence and he referred to a 1987 decision where it was held that evidence relating to guilt or innocence must, as far as was practicable, be kept securely until the end of the trial.
The issue of what material was to be retained or disposed of had to be decided on a case-by-case basis, he added.
In this case, it was quite clear the items in question were not perishable and not sought by any other person. They were retained by gardaí for more than 15 years and had then been lost.
The issue to be decided was whether Mr McFarlane could get a fair trial given the loss of the items, Mr Justice Ó Caoimh said.
He had to conclude that in considering that issue, he was bound by a Supreme Court decision in the Bradish case.
By reason of the failure to retain items, this had led to a situation of the loss of vital evidence.
In those circumstances, he would grant Mr McFarlane an order restraining his trial.
