Maze prison escaper Brendan "Bik" McFarlane has secured leave from the High Court to bring a fresh legal challenge aimed at restraining his trial on charges connected with the 1983 kidnapping of supermarket boss Don Tidey.
Mr Justice Micheal Peart yesterday granted leave to Mr Hugh Hartnett SC, with Mr Stephen McCann, to bring judicial review proceedings aimed at securing an order prohibiting the trial, listed for hearing before the non-jury Special Criminal Court in October next.
McFarlane is contending he cannot receive a fair trial because of "systemic" delays in bringing the prosecution.
In seeking leave, Mr Hartnett said this was his client's second set of judicial review proceedings. He had initiated the first judicial review challenge to his prosecution in 1999 and it was only last March that a final decision on those proceedings was delivered.
The delay of some six years and four months in securing final judgment on McFarlane's challenge was not due to any fault of his, but rather due to delays inherent in the court processes which have further prejudiced his right to a fair trial, Mr Hartnett contended.
In the intervening years, McFarlane married and has three young children and contends the family unit is dependent on him for their day-to-day care, as his wife is in full-time employment.
Mr Hartnett said a High Court judgment of December last, in which the trial of Mr Ivor Sweetman was prohibited on grounds of delays in the court processes, was a supporting authority for McFarlane's claims.
Mr Sweetman had been charged with the murder of Co Tipperary farmer Danny Fanning in 1996. His 1997 conviction on that charge was overturned by the Court of Criminal Appeal, which in 2000 ordered a retrial.
That trial was ultimately scheduled for January 2005 but, given a delay of seven years and three months, the High Court held last year that Mr Sweetman had been deprived of the right to a speedy trial and restrained any further prosecution.
The court noted it was clear that some part of the delay was caused by the then "overwhelming" pressures on the inadequate facilities of the legal system, but went on to observe that "significant improvements" had been made in court waiting times since 2004.
McFarlane (52), of Jamaica St, Belfast, was charged in January 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 had been in prison at the Maze since 1975 for his part in the IRA bombing of a bar on the Shankill Road in which five people were killed. He 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 in January 1986, extradited to Northern Ireland and released on parole from the Maze in 1997.
He was arrested by gardaí outside Dundalk in January 1998 and secured bail later, pending the outcome of the various legal challenges to his prosecution.
Don Tidey was kidnapped by an IRA gang in 1983 and rescued after 23 days in captivity. A trainee garda, Gary Sheehan, and a member of the Defence Forces, Pte Patrick Kelly, were killed in a shoot-out with the kidnap gang when Mr Tidey was rescued.
In the High Court in July 2003, in his judgment upholding McFarlane's challenge to his prosecution, Mr Justice Aindrias O'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.
However, on April 15th last, by a four-to-one majority, the Supreme Court overturned that decision. While criticising the fact that important evidence in the case had been lost by gardaí, the majority Supreme Court said the fingerprints had been photographed and the photos of the impressions were still available.
