ANALYSIS:The latest ruling from the human rights court in Strasbourg should bring changes to how cases are prosecuted, writes CAROL COULTER
MANY PEOPLE will not even remember the kidnapping of Don Tidey and his rescue, involving a gun battle, during which a soldier and a member of the Garda Síochána were killed. Yet it was only yesterday that the final act in the legal saga that ensued was played out, culminating in a ruling against the State for delay in prosecuting the case.
Brendan McFarlane, a prominent IRA member in the 1970s and 1980s, was suspected of involvement in the kidnapping as early as 1984, when he was on the run having escaped from prison in Northern Ireland. He was arrested in 1986 and sent back to prison there, where he remained until 1998.
This is the first period during which he claimed he could have been arrested and questioned in relation to the offences. In fact he was not arrested by gardaí until he was released from prison having served his sentence.
However, the Strasbourg court focused its attention on the period between 1998, when McFarlane was first charged, and 2008, when the case was eventually heard. In 1999 he discovered that fingerprint evidence had been lost and sought a prohibition of the trial in proceedings which ended in 2006. A second attempt to have the trial prohibited failed.
The first issue raised was whether the case could be admitted at all. The Government argued that the case was inadmissible because he had not exhausted all domestic remedies, and rejected an earlier ruling from the Strasbourg court, in the case of Dr James Barry, that domestic remedies for such delays were not effective.
They based this on a lengthy opinion by leading constitutional lawyer, Dr Gerard Hogan SC, who said that a constitutional action could be brought seeking damages for denial of the constitutional right to reasonable expedition, a right also guaranteed by Article 13 of the European Convention on Human Rights and invoked by McFarlane in his action.
The opinion stated that, while no one had ever requested damages for breach of a right to reasonable expedition, this remedy did exist. By not seeking it, the applicant had not exhausted all domestic remedies.
James MacGuill, solicitor for McFarlane, pointed out that no one had ever successfully sued for damages in such an action. He also said that, as his client’s main objective was in having his trial stopped, it was unrealistic to expect him to simultaneously seek to have it expedited on what he regarded as tainted evidence.
He also pointed out that such a course of action, inevitably before both the High and the Supreme Courts where there were backlogs of cases, would have taken many years, thereby contributing to further delay.
The Strasbourg court accepted this argument in admitting the case. It pointed out that there was no streamlined procedure for seeking such a remedy, and that the legal costs associated with it could have been prohibitive.
While the Government lost the argument here, it remains to be seen whether other litigants will now rely on the position it took in Strasbourg to pursue claims for compensation for delay in the Irish courts.
The second issue concerned the manner in which the case was prosecuted between 1998 and 2008, when the applicant was eventually acquitted, more than 10 years after his arrest, during which his movements were restricted and he had to report regularly to gardaí. During much of this period McFarlane was seeking to prohibit the criminal trial on the grounds that it was unfair.
The Strasbourg court was critical of the fact it took the State a year and a half to discover documents sought in 2000. It also criticised the time it took (16 months) to re-enter proceedings that had lapsed. It was equally critical of the fact that it took 17 months for the High Court judge to approve a transcript of the first prohibition hearing.
Finding Ireland to be in breach of Article 6 of the convention, the court said: “The Government have not provided any or any convincing explanations for the above-described delay attributable to the authorities in the prohibition actions, which added to the overall length of the criminal proceedings.”
The implications of this will now have to be considered by various organs of the State, including the Chief State Solicitor’s Office, the office of the DPP, the judiciary and the Courts Service and, not least, the office of the Attorney General.