The Supreme Court has reserved judgment in an appeal by the Director of Public Prosecutions against a High Court decision preventing the prosecution of Maze prison escaper Brendan “Bik” McFarlane on charges connected with the 1983 kidnap of supermarket executive Don Tidey.
The High Court made an order in July 2003 preventing the DPP from proceeding with McFarlane's trial at the Special Criminal Court because certain exhibits had gone missing and were not available for inspection by McFarlane or his lawyers.
McFarlane (aged 52) of Jamaica Street in Belfast was charged in 1998 with falsely imprisoning Mr Don Tidey in 1983 and with possession of a firearm with intent to endanger life at Derrada Wood, Ballinamore, Co Leitrim in November and December 1983.
McFarlane was the leader of the Provisional IRA prisoners at the Maze prison and escaped in the mass break out by 38 prisoners from the jail in September, 1983. He was later arrested in Amsterdam, extradited to the North and released on parole from the Maze in 1997.
Supermarket executive Don Tidey was kidnapped by an IRA gang in 1983 and rescued after 23 days in captivity. A trainee garda and a member of the Defence Forces were killed in a shoot-out with the kidnap gang when Mr Tidey was rescued.
Mr Justice Ó Caoimh made an order prohibiting the prosecution of McFarlane after hearing that a milk carton, a plastic container and a cooking pot found at a hideout where Mr Tidey was imprisoned and on which fingerprints were recovered had gone missing from Garda Headquarters.
Appealing against the High Court order today, Mr Anthony Collins SC, for the DPP, submitted that the onus was on McFarlane to prove that there was real risk of an unfair trial, which could not be rectified by the trial judge because of the missing items.
Mr Hugh Hartnett SC, for McFarlane, submitted that the defence was at a disadvantage because it cannot have access to the missing evidence.
He said the defence could not examine the items or have the benefit of an expert examining them after a period of more than 20 years.
McFarlane has been remanded on bail at the Special Criminal Court since his arrest in 1998 awaiting the outcome of various legal challenges to his trial.