McFarlane -v- DPP, [2006] IESC 11 (2006)

Docket Number:315/03 & 49/06
Party Name:McFarlane, DPP
Judge:Kearns J. / Hardiman J.


Murray C.J. 315/03 & 49/06

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.


BRENDAN McFARLANE Applicant/Respondentand



JUDGMENT of Mr. Justice Hardiman delivered the 7th day of March, 2006.

Brendan McFarlane is charged with three offences: possession of a firearm with intent to endanger life between the 25th November, 1983 and the 16th December, 1983, at the Derradda Wood, Drumcroman, Ballinamore, Co. Leitrim; possession of a firearm at the same time and place in such circumstances as to give rise to a reasonable inference that he did not have it in his possession for a lawful purpose and with falsely imprisoning Donald James Tidy by unlawfully detaining him against his will between the 24th November, 1983, and the 16th December, 1983. The applicant/respondent (hereafter the applicant) has sought to prohibit his trial on these charges on the basis of prejudicial delay and secondly on the basis that during the time which has elapsed certain exhibits have gone missing. The significance of these exhibits is that it is alleged by the prosecution that they were found at the place where Mr. Tidy was unlawfully held and that they bore the applicant's fingerprints. Mr. Tidy was held outdoors in wooded countryside between the 25th November, 1983, and the 16th December of the same year. When the security forces came upon the place there was a gunfight between them and those holding Mr.Tidy. In the course of this two members of the security forces, recruit Garda Sheehan and Private Kelly, died. Mr. Tidy was rescued and removed from the area by security forces. The area in question is that identified in the charges, near Ballinamore, Co. Leitrim.

The items on which the applicant's fingerprints were allegedly found were the following:

(a) A North Connaught Farmer's one litre milk carton with a sell by date of the 16th December, 1983,

(b) A plastic container,

(c) A cooking pot.

In circumstances discussed below, the applicant was arrested on the 5th January, 1998, and subsequently charged with the above offences. The applicant was unsuccessful in the High Court on the second of these points and the Director has appealed to this Court.

The delay.

From the affidavit of Detective Superintendent John McElligott it appears that, in the aftermath of the rescue of Mr. Tidy the applicant was suspected of involvement in his kidnapping and false imprisonment. Details of him were circulated through garda channels and in particular through Fógra Tora in January, 1984. It appears that the applicant had been imprisoned in Northern Ireland since 1975, serving a long sentence of imprisonment for his part in the IRA bombing of a bar on the Shankhill Road, Belfast, in which five people were killed. However, on the 25th September, 1983, the applicant escaped from the Maze Prison together with other prisoners. In January, 1986, the applicant was arrested in the Netherlands and was found to be in possession of a stolen or forged Irish passport. On the 3rd December, 1986, he was extradited from the Netherlands back to Northern Ireland. From that time until some time shortly prior to his arrest he was serving his sentence in Northern Ireland and this fact was known to the Gardaí.

Superintendent McElligott says that the Gardaí were very conscious of the fact that the applicant's fingerprints had been found on the three items described above, found at the scene of the camp or hide where Mr. Tidy had been held. They considered that the applicant should be sought for interview in relation to the false imprisonment of Mr. Tidy and associated crimes, but that there was then insufficient evidence to commence proceedings against him. They intended to question him if possible while detained under s.30 of the Offences against the State Act. For these reasons his extradition from Northern Ireland was not sought in connection with these crimes, and nor was it sought to have him prosecuted under the Criminal Law (Jurisdiction) Act, 1976, while he was in prison in Northern Ireland. Equally, he was not interviewed while serving the sentence in Northern Ireland because it was believed he would not co-operate in any such venture and that he would be entitled to refuse to see any garda who sought to interview him while in prison in Northern Ireland.

Subsequent to his arrest on the 5th January, 1998, the applicant was questioned by members of An Garda Síochána. According to those members for the most part he declined to answer questions and simply stared at the wall. It is alleged, however, that he made certain admissions while being questioned. Specifically, it is alleged that when asked about his involvement "in Dromcronan Wood" he said:"On the advice of my solicitor I will not discuss it. I was there you can prove that but I will not talk about it".

The following conversation then took place:

Q. "What do you expect will happen to you?

A. I am prepared for the big one. I have already talked to her [his girlfriend who had been to see him] about our future and house.

Q. Do you mean murder?

A. I am prepared for the worst."

These alleged statements, together with the fingerprints, constitute the case against the applicant. In the course of these proceedings the applicant did not affirm, comment upon, or deny any part of this evidence and of course he was not obliged to do so.

Effect of delay.

Insofar as the case is based on delay simplicitor, the applicant says that the State authorities could have invoked the procedures under the Criminal Law (Jurisdiction) Act, 1976, providing for him to be tried in Northern Ireland for these offences. This, they say, could have been done at any time since December, 1986, the date of his return to Northern Ireland having been extradited from the Netherlands. Equally, the authorities could have taken steps to extradite him for the purpose of preferring the...

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