The Belfast prison escaper, Brendan McFarlane, has asked the High Court for orders preventing his trial before the non-jury Special Criminal Court on charges arising from the kidnapping of a supermarket executive, Mr Don Tidey, 20 years ago.
The kidnapping led to a massive search which culminated in a shoot-out between the kidnappers, gardaí and Army at Derrada Wood, near Ballinamore, Co Leitrim, in December 1983 during which a Garda recruit and a soldier were killed.
McFarlane, with an address in Belfast, claims his right to a fair trial has been prejudiced by the delay in prosecuting and also through the loss of a number of items on which, gardaí claim, his fingerprints were found.
He is 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 is also charged with the false imprisonment of Mr Tidey between the same dates.
McFarlane, then serving a life sentence arising from the bombing of a bar on Belfast's Shankill Road in the 1970s in which five people died, escaped from the Maze Prison in 1983 with 37 others and was subsequently arrested in the Netherlands in 1986, from where he was extradited to Northern Ireland.
He was jailed in Northern Ireland and from 1993 to 1998, as part of a pre-release programme, he was released twice a year for periods of one week on parole.
McFarlane was arrested on January 5th, 1998, on a bus travelling between Dublin and Belfast. He claims that he had travelled to the Republic previously and the authorities never sought to arrest him. He was taken before the Special Criminal Court later that same day and charged.
On the day of his arrest here, McFarlane claims, he was due for full release from prison in the North. That day Dr Mo Mowlam, then Northern secretary of state, had signed the final licence authorising his release.
In his High Court proceedings, which opened yesterday before Mr Justice O Caoimh, McFarlane is seeking injunctions restraining the DPP from taking any steps to further prosecute him.
Mr Roderick O'Hanlon SC, for McFarlane, said his client, at any time during his imprisonment in Northern Ireland, could have been prosecuted under the Criminal Law Jurisdcition Act, 1976, for the 1983 offences.
Counsel said the Garda had simply stated that McFarlane would not have co-operated with interviews, but it was for the DPP, and not the Garda, to decide whether to bring a prosecution. No file had been forwarded to the DPP, and the DPP was therefore not permitted to make that decision whether to prosecute or not.
McFarlane's right to a fair trial had been prejudiced by the delay in prosecution, counsel argued. He was also prejudiced because he was unable to challenge alleged fingerprint evidence against him.
The DPP is opposing the application to prevent the trial and denies that McFarlane's right to a fair trial has been prejudiced either through delay or the non-availability of the three items on which the alleged fingerprints were photographed.
