McFarlane -v- DPP, [2008] IESC 7 (2008)

Docket Number:60/07
Party Name:McFarlane, DPP
Judge:Fennelly J. / Geoghegan J. / Kearns J.

JUDGMENT BY: Fennelly J.

THE SUPREME COURTRecord no: 0060/2007

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.


BRENDAN McFARLANE Applicant/Appellant - and -



Judgment delivered the 5th day of March 2008 by Fennelly J.

Brief introduction and summary

1. The appellant stands charged with three offences alleged to have been committed by him between specified dates in November or December 1983. Most notable among them is a charge of the false imprisonment of one Donald Tidey at a location in County Leitrim. The other charges relate to possession of a firearm. These charges were preferred in January 1998.

2. The present proceedings are the appellant's second application for orders prohibiting his trial. They come before this Court by way of appeal from the judgment and order of Quirke J in the High Court, dismissing his application

3. The first judicial review proceedings were commenced in November 1999. The appellant relied on two grounds: firstly, delay in the institution of the prosecution against him; secondly, the admitted loss by the gardaí of three items of physical evidence, upon which the prosecution alleged that the appellant's fingerprints had been found. The appellant failed on the delay ground in both the High Court and this Court. He succeeded on the second ground in the High Court, but the Director of Public Prosecutions appealed to this Court, which allowed the appeal and dismissed the application for prohibition of his trial. The first set of judicial review proceedings ended on 7th March 2006 with the judgment of this Court. When initiating those proceedings, the appellant had secured an order from the Court restraining the DPP from continuing with the prosecution while the proceedings were pending.

4. On 15th May 2006, the appellant commenced the present judicial review proceedings, when the order granting leave was made. The first relief sought is a declaration that the delay in the hearing and determination of the first judicial review proceedings constituted a breach of the appellant's constitutional right to a fair trial in due course of law in accordance with Article 38.1 of the Constitution or alternatively a breach of the appellant's rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The appellant, consequently, seeks orders by way of prohibition and injunction. The essence of the complaint is that the entire process leading to the determination of the first judicial review proceedings, a total period of six years and four months, constituted a breach of the appellant's rights and that, consequently, the Respondent (whom I will refer to as the DPP) should be prevented from continuing with his prosecution.

The facts: 1983 to 1998

5. At one level, the appellant's complaint regarding delay should be confined strictly to an examination of the period it took to dispose of the first judicial review proceedings. However, the appellant has by no means abandoned his claim to rely on the undoubtedly long period which elapsed between the dates at the end of 1983, to which the charges relate and the commencement of the criminal prosecution at present pending against him. Counsel repeatedly described the case, at the hearing of the appeal, as being "old" or "ancient," submitting that this placed an additional onus on the prosecution to expedite it. The appellant's written submissions contain extensive reference to case-law on the right to an expeditious trial and emphasise that "the time factor, so often a complicating and confusing factor in a criminal trial is an extremely important feature in this case." It is claimed that "the strength of the testimony that may be given viva voce by any witness on behalf of the prosecution may be weakened in strength and detail by reason of the lapse of time between the alleged offences and their future prosecution." Thus, the appellant includes, as part of the period of lapse of time the period of some sixteen years between the dates of the alleged offences and the commencement of the prosecution.

6. The essential facts relating to the period from 1983 to 1998 appear from the judgment of Hardiman J, speaking for the majority of the Court, dated 7th March 2006 concluding the first judicial review proceedings. They are as follows.

7. The appellant had been imprisoned in Northern Ireland since 1975. He was serving a long sentence of imprisonment for his part in the IRA bombing of a bar on the Shankill Road, Belfast, in which five people were killed. On 25th September, 1983, he escaped from the Maze Prison together with other prisoners. The offences with which he is now charged are alleged to have been committed in November or December of that year. In the aftermath of the rescue of Mr. Tidey the appellant was suspected by the gardaí of involvement in his kidnapping and false imprisonment.

8. In January, 1986, the appellant 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 to Northern Ireland. From that time until immediately prior to his arrest he was serving his sentence in Northern Ireland and this fact was known to the Gardaí. He was arrested in relation to the offences with which he is at present charged on 5th January 1998. This occurred upon his release after service of a period of some fifteen years in prison in Northern Ireland.

9. The appellant was detained by An Garda Síochána pursuant to s. 30 of the Offences against the State Act, 1939 as amended. In the course of being questioned, it is alleged that the appellant gave certain answers, which are material to the alleged offences. Hardiman J dealt with that issue in his judgment.

10. The result of the judgment of this Court of 7th March 2006 was that the evidence which the prosecution authorities considered necessary to establish a sufficient case to bring a charge against the appellant was not available until he had been questioned while detained. That was shortly before he was in fact charged. That, in the view of the majority of this Court, was fatal both to the contention, advanced on his behalf in that case, that he might have been proceeded against in Northern Ireland, pursuant to the Criminal Law (Jurisdiction) Act, 1976 or that his extradition might have been sought from Northern Ireland. Hardiman J concluded as follows: "On the evidence before the Court in this case there was simply no sufficient case against him on the present charges at any time while he was in custody in Northern Ireland. Accordingly, to attempt to proceed against him in either of the ways mentioned would not merely have been pointless, but would have been an abuse of the respective procedures."11. Hardiman J also rejected, as unrealistic, the suggestion that the gardaí might have sought to question the appellant about the present charges, while he was in custody in Northern Ireland. On this issue, the learned judge observed: "The applicant was a hardened criminal, serving a sentence for a very serious offence and suspected with reasonable grounds of involvement in another such offence. Nor could it be said that there was nothing to be lost by trying to interview him in respect of the present offences: any such attempt would have put him on notice of the Garda interest in him in that connection and might thereby render less effective any questioning of him when he eventually became available for arrest by the Gardaí."12. In the result, there was no basis for the applicant to complain about that delay, more properly called a lapse of time, between the date of the alleged offences and his being charged with them some fifteen years later. Apart from the point about the evidence, the appellant was either in prison in Northern Ireland, serving a sentence for a serious crime or unlawfully at large, having escaped from prison.

13. I have no doubt, therefore, that the appellant is entirely disentitled from complaining, in the present proceedings, about any delay by the prosecuting authorities. Nothing done or omitted by those authorities constituted an infringement of his rights.

The facts: time taken for the first judicial review proceedings

14. The following is a history of the period of over six years taken to dispose of the first judicial review proceedings.1. On 1st November, 1999, the High Court (McGuinness J.) made the order granting leave to seek judicial review so as to restrain the DPP continuing with the prosecution of the appellant in respect of the charges preferred against him on the two grounds already discussed;

2. The High Court granted an order, pending the determination of the proceedings, restraining the DPP from continuing with the prosecution; accordingly, the date, in November 1999, which the Special Criminal Court had fixed for the trial was vacated;

3. The appellant issued the Notice of Motion required by the High Court order, returnable for 29th November 1999; the case was adjourned at the request of the DPP and was successively adjourned on a number of other dates;

4. The DPP delivered his Statement of Opposition on the 5th April, 2000;

5. By a letter of 15th May 2000, the appellant's solicitors wrote asking the DPP to agree to make voluntary discovery of documents; the DPP declined to do so;

6. The appellant issued a Notice of Motion returnable before the Master of the High Court for 13th October 2000 seeking an order for discovery; that motion was adjourned by consent of the parties, but at the request of the DPP, and was due to be heard on 12th January 2001;

7. On that date (12th January 2001), due to a misunderstanding of both parties, there was no appearance before the Master, who struck out the motion;

8. On 29th May 2001, the appellant's solicitors wrote to the Chief State Solicitor, seeking consent to...

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